superior court of the state of california …...claiming damages arising out of their purchases of...

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES

CAROLYN LEVIN, in Her Individual andRepresentative Capacity on Behalf of a Classof All Persons Similarly-Situated,

Plaintiff,

v.

NIKE, INC., an Oregon Corporation; APPLEINC., a California Corporation; and DOES 1through 10, inclusive,

Defendant.

CASE NO. BC509363

Assigned to Hon. William F. Highberger

SETTLEMENT AGREEMENT

TABLE OF CONTENTS

Page

............................................................................1

1 C. C)T:ai~ 1NI'l'10NS .....................................................................................................................3

III. SETTLEMENT t~LASS CERTIFICATION .......................................................................6

1V. SE:'C"C'L1:1V1E;N".1' Oi~ LIfC'I~iA'I'ION ANI) AIaL C[,A1MS ACi.ATNS'l"

fti1:.,~;~15~;~;5 ......................................................................................................................6

V. PAYMENTS TO TI IE SCTTL~IVIENT ADMINISTRATOR AND TIIE CLASS

MEM£3~RS UNUCR TII~ SETTLCNf~NT ........................................................................6

Vl. ~tFI..,~ t1,S~ : ..........................................................................................................................9

Vii. C;f:~12'1'11~CC'A'I`I(?N nl~ ''C'H1:~ Sl':s'1"~1'I.,I~:;MI::'sN'1" CT,ASS ANZa RT:?I.,A'I~'l:sI)

VIII. NOTICE TO PROPOSED CLASS MEMBERS .................................:.............................10

X. nIIJCGTIONS ....................................................................................................................12

XI. FA[~Z:N~SS H~~1I7ING ........... ............................................................ ......................14

XII. OkC)i:;R ANIa JUI:)CrMI:?N'1' ............................................................................................14

XIII. BAR ORDER .....................................................................................................................14

X1V. ~T'IIZM.INA'1'iON O~ '1'H~; SI"I"7 1̀.,1M~;N'1' ........................:.............................................14

XV. ATT(7RNCY'S FCCS AND SERVICC AWARD .............................................................16

XVI. R~;l'f~FS1=;N'C,~1"1'IUN;S .............................................................:.......................................16

u

SETTLEMENT AGREEMENT(Subject To Court Approval)

This settlement agreement ("Agreement' or "Settlement Agreement") is entered into by

and between Nike, Inc. ("Nike," as defined herein at paragraph 24), Apple Inc. ("Apple," as

defined herein at paragraph 25), and the named Plaintiff Class Representative Carolyn Levin

("Plaintiff," as defined herein at paragraph 31), both individually and on behalf of a Settlement

Class (as defined herein at paragraph 15) of people and entities who purchased a Nike+

FuelBand.

I. BACKGROUND

1. Plaintiff filed a lawsuit against Nike and Apple on behalf of numerous persons

claiming damages arising out of their purchases of the Nike+ FuelBand. That

lawsuit, Levin v. Nike, Inc. et al. (Case No. BC509363), is currently pending in

the Superior Court of California.

Plaintiff alleges that Nike and Apple made false and/or misleading statements

regarding the Nike+ FuelBand and failed to honor the warranty terms of the

Nike+ FuelBand. Plaintiffls Second Amended Complaint, a copy of which is

attached hereto as E~chibit 1, and which Plaintiff has expressed an intention to file

with the Court as the operative complaint in this action, alleges that Nike's and

Apple's conduct violates California's Unfair Competition Law (Cal. Bus. &Prof.

Code § 17200 et seq.), Consumer Legal Remedies Act (Cal. Civ. Code § 1750 et

seq.), and False Advertising Law (Cal. Bus. &Prof. Code § 17500 et seq.), and

alleges claims for breach of warranty and "common counts" of "assumpsit,

restitution, and quasi-contract."

3. Nike and Apple deny and continue to deny each and every allegation and all

charges of wrongdoing or liability of any kind whatsoever that Plaintiff or

members of the Class presently have asserted in this Litigation (as defined herein

at paragraph 27) or may in the future assert. Despite Nike's and Apple's belief

that they are not liable for, and have good defenses to, the claims alleged in the

Litigation, Nike and Apple desire to settle the Litigation, and thus avoid the

expense, risk, exposure, inconvenience, and distraction of continued litigation of

any action or proceeding relating to the matters being fully settled and finally put

to rest in this Agreement. Neither this Settlement Agreement, nor any negotiation

or act performed or document created in relation to the settlement is, or may be

deemed to be, or may be used as, an admission of, or evidence of, any

wrongdoing or liability.

4. Following arms' length negotiations, including mediation before an experienced

mediator, the Parties now seek to enter into this Settlement Agreement. Plaintiff

and Class Counsel have conducted an investigation into the facts and the law

regarding this Litigation and have concluded that a settlement with Nike and

Apple according to the terms set forth below is fair, reasonable, and adequate, and

beneficial to and in the best interests of Plaintiff and the Class recognizing (1) theexistence of complex and contested issues of law and fact, (2) the risks inherent inlitigation, (3) the likelihood that future proceedings will be unduly protracted and

expensive if the proceeding is not settled by voluntary agreement with Nike andApple, (4) the magnitude of the benefits derived from the contemplated settlementin light of both the maximum potential and likely range of recovery to be obtainedthrough further litigation and the expense thereof, as well as the potential of norecovery whatsoever, and (5) the Plaintiff's determination that the settlement isfair, reasonable, adequate, and will substantially benefit the Class Members.

5. The Parties shall use their best efforts to effectuate this Agreement, including, but

not limited to, cooperating in promptly seeking the Court's approval of thisAgreement, certification of the settlement class, and release of the Releasees of

the Released Claims.

6. No party shall be deemed the drafter of this Agreement or any provision thereof.

No presumption shall be deemed to exist in favor of or against any party as aresult of the preparation or negotiation of this Agreement.

7. This Agreement shall be governed by, and construed and enforced in accordance

with, the substantive laws of the State of California without regard to conflict of

laws principles.

8. Nothing express or implied in this Agreement is intended or shall be construed to

confer upon or give any person or entity other than the Parties and Class Members

any right or remedy under or by reason of this Agreement.

9. This Agreement may be executed in multiple counterparts, all of which takentogether shall constitute one and the same Settlement Agreement.

10. In consideration of the covenants, agreements, and releases set forth herein, andfor other good and valuable consideration, the receipt and sufficiency of whichare hereby acknowledged, it is agreed by and among the undersigned that theLitigation be settled and compromised, and that the Class Members release theReleasees of the Released Claims, without costs as to Releasees, Plaintiff, or theClass, except as explicitly provided for in this Agreement, subject to the approvalof the Court, on the following terms and conditions.

1 1. This Agreement may not be modified or amended unless such modification oramendment is in writing executed by the Parties, except as specifically permittedby this Agreement. An electronic signature will be considered an originalsignature for purposes of execution of this Agreement.

12. Where this Agreement requires any party to provide notice or any othercommunication or document to any other party, such notice, communication, or

document shall be provided by email or letter by overnight delivery to theircounsel in the Litigation.

II. DEFINITIONS

The following terms, as used in this Agreement, have the following meanings:

13. "Administrative Expenses" shall mean expenses associated with the Settlement

Administrator, including but not limited to costs in providing notice and

disbursing payments or gift cards to the proposed Settlement Class Members.

14. "Approved Claims" shall mean complete and timely claims, submitted by Class

Members, that have been approved for payment by the Settlement Administrator.

15. "Class," "Settlement Class," "Class Member," or "Settlement Class Member"

shall mean each member of the settlement class, as defined in Section III of this

Agreement, who does not timely elect to be excluded from the Class, and

includes, but is not limited to, Plaintiff.

16. "Class Counsel" shall refer to:

a. Thomas V. GirardiGIRARDI ~ KEESE

1126 Wilshire Blvd.Los Angeles, CA 90071; and

b. Paul N. PhilipsLAW OFFICES OF PAUL N. PHILIPS, APLC

9255 W. Sunset Blvd., Suite 920Los Angeles, CA 90069.

17. "Counsel" means both Class Counsel and Nike's and Apple's Counsel, as defined

in paragraphs 16 and 26.

18. "Class Period" shall mean the period from and including January 19, 2012, up to

and including the date of the Court's order granting preliminary approval of the

settlement.

19. "Class Release" shall have the meaning set forth in Section VI.

20. "Class Relief' means those benefits awarded to Class Members by the Settlement

Agreement, including without limitation the right to submit a Proof of Claim

Form.

21. "Court" shall mean the Superior Court of the State of California for the County of

Los Angeles and the Honorable William F. Highberger, who presides over theLitigation, and his successors, if any.

22. "Effective Date" shall mean the date when the Settlement Agreement becomes

Final.

a. "Final" means the Order and Judgment has been entered on the docket inthe Action, and (a) the time to appeal from such order has expired and noappeal has been timely filed; (b) if such an appeal has been filed, it hasbeen finally resolved and has resulted in an affirmation of the FinalApproval Order and Judgment; or (c) this Court following the resolutionof the appeal enters a further order or orders approving settlement on theterms set forth herein, and either no further appeal is taken from suchorders) or any such appeal results in affirmation of such order(s).

b. "Order and Judgment" shall mean an order and judgment entered by theCourt that:

i. Certifies the Settlement Class pursuant to sections 382 and 1781 ofthe California Code of Civil Procedure;

ii. Enters judgment consistent with California Rule of Court 3.769(h)including a provision for the retention of the Court's jurisdictionover the parties to enforce the terms of the judgment;

iii. Finds that the Settlement Agreement is fair, reasonable, andadequate, was entered into in good faith and without collusion, andapproves and directs consummation of this Agreement;

iv. Releases each Releasee from the Released Claims which anySettlement Class Members have, had, or may have in the future,against such Releasee;

v. Bars and enjoins all Settlement Class Members from assertingagainst any Releasees any and all Released Claims which theSettlement Class Member had, has, or may have in the future; and

vi. Preserves the Court's continuing and exclusive jurisdiction overthe Parties to this Agreement, including Nike, Apple, Plaintiff, andall Settlement Class Members; to administer, supervise, construeand enforce this Agreement in accordance with its terms for themutual benefit of the Parties, but without affecting the finality ofthe Judgment.

23. "Execution Date" shall mean the date on which this Agreement is fully executedby all parties.

24. "Nike" shall mean Nike, Inc. (an Oregon corporation), its past and presentparents, predecessors, successors, affiliates, holding companies, subsidiaries,employees, agents, assigns, contractors, and resellers of the Nike+ FuelBand.

25. "Apple" shall mean Apple Inc. (a California corporation), its past and presentparents, predecessors, successors, affiliates, holding companies, subsidiaries,employees, agents, assigns, and contractors.

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26. "Nike's and Apple's Counsel" shall refer to:

a. Samuel LiversidgeGIBSON DUNN & CRUTCHER LLP333 South Grand Ave.Los Angeles, CA 90071; and

b. Austin V. SchwingGIBSON DUNK & CRUTCHER LLP555 Mission StreetSan Francisco, CA 94105.

27. "Litigation" shall mean Levin v. Nike, Inc. et al., Case No. BC509363, currently

pending in the Superior Court of California.

28. "Opt-Out" shall mean a written request for exclusion from the Class as provided

in Section IX of this Settlement Agreement.

29. "Opt-Out Period" shall have the meaning set forth in paragraph 61.

30. "Parties" shall mean Nike, Apple, the Plaintiff, and the proposed Settlement

Class.

31. "Plaintiff' of "Plaintiff Class Representative" shall mean the named class

representative, Carolyn Levin.

32. "Preliminary Approval Order" shall mean an order of this Court preliminarily

approving the Settlement Agreement.

33. "Proof of Claim Form" shall mean the form that Class Members may submit to

obtain compensation under this Settlement.

34. "Nike+ FuelBand" shall mean the whole or any part of the Nike+ FuelBand,regardless of which entity sold it.

35. "Related Actions" shall mean any proceeding, other than the Litigation, that is

related to the Nike+ FuelBand in any federal, state, or other arbitral forum.

36. "Released Claims" shall have the meaning set forth in Section VI.

37. "Releasees" shall refer, jointly and severally, and individually and collectively, to

Nike and Apple, their past and present parents, predecessors, successors,affiliates, holding companies, subsidiaries, employees, agents, assigns,contractors, joint venturers, third-party agents with which they have or have-hadcontracts or their affiliates relating to the Nike+ FuelBand, and any resellers of theNike+ FuelBand.

38. "Releasors" shall refer, jointly and severally, and individually and collectively, to

Plaintiff, the Class Members, and to each of their predecessors, successors, heirs,

executors, administrators, and assigns of each of the foregoing, and anyone

claiming by, through, or on behalf of them.

39. "Settlement Administrator" means the individual mutually selected and

supervised by the Parties to administer the settlement. The Parties shall

recommend Gilardi & Co. to serve as Settlement Administrator.

III. SETTLEMENT CLASS CERTIFICATION

40. Subject to Court approval, the following Class shall be certified for settlement

purposes:

All people and entities in the United States who purchased

a Nike+ FuelBand from the time period from and including

January 19, 2012, through the date of the order granting

preliminary approval of the settlement.

41. Excluded from the Class are all persons who elect to exclude themselves from the

Class, the Court and staff to whom this case is assigned, and any member of the

Court's or staff s immediate family.

42. If for any reason the settlement is not granted preliminary and final approval,

Nike's and Apple's agreement to certification of the Settlement Class shall not be

used for any purpose, including in any request for class certification in this

Litigation, Related Actions, or any other proceeding.

IV. SETTLEMENT OF LITIGATION AND ALL CLAIMS AGAINST RELEASEES

43. As set forth in Sections VI, XII, and XIII, final approval of this Settlement

Agreement will settle and resolve with finality, on behalf of the Plaintiff and the

Class, the Litigation, any Related Actions, and the Released Claims and any other

claims that have been brought, could have been brought, or could be brought now

or at any time in the future against Releasees by the Plaintiff, Class Members, and

their predecessors, successors, heirs, executors, administrators, and assigns of

each of the foregoing, in the Litigation, Related Actions, or any other proceeding

arising out of, in any manner related to, or connected in any way with the

Released Claims (the "Class Release").

V. PAYMENTS TO THE SETTLEMENT ADMINISTRATOR AND THE CLASS

MEMBERS UNDER THE SETTLEMENT

44. Payment of the Settlement Administrator

a. Nike shall be solely responsible for paying the Settlement Administrator

the Administrative Expenses.

C~

45. Class Member's Election of Benefits Under the Settlement

a. A Class Member who timely submits a Proof of Claim Form shall receive,according to the-Class Member's election, either a Fifteen Dollar ($15)payment or a Twenty-Five Dollar ($25) gift card redeemable at Nike-owned stores in the US and Puerto Rico, and online at Nike.com, for eachNike+ FuelBand purchased by the Class Member during the Class Period.

The gift card will be freely transferable and will not expire. Nike will besolely responsible for these payments and gift cards and will coordinatetheir delivery with the Settlement Administrator. Apple will have no

responsibility or liability with respect to payments or gift cards to Class

Members.

46. Submission and Evaluation of Claims

a. All claims must be submitted on a Proof of Claim Form. The Proof ofClaim Form will require the Class Member to provide his or her name,

mailing address, telephone number, and serial number for each Nike+

FuelBand for which a Proof of Claim Form is being submitted. The Proof

of Claim Form must be submitted on or before the Proof of Claim Form

Deadline, which shall be sixty (60) days after the date the Court sets for

the Fairness Hearing in the Preliminary Approval Order. The Proof of

Claim Form shall be substantially in the form attached hereto as Exhibit 2.

b. Completed Proof of Claim Forms shall be submitted directly to the

Settlement Administrator for processing, assessment, and payment. The

Proof of Claim Form may be mailed, faxed or electronically transmitted.

c. A Proof of Claim Form will be deemed to be complete if the Class

Member fully answers all applicable questions on the Proof of Claim

Form.

d. Any Proof of Claim Form that lacks the requisite information will be

deemed to be incomplete and ineligible for payment. For any partially

completed Claim Forms, the Settlement Administrator shall attempt to

contact the-Class Member who submitted the Claim Form at least one time

by e-mail (1) to inform the Class Member of any errors and/or omissions

in the Claim Form and (2) to give the Class Member one opportunity tocure any errors and/or omissions in the Claim Form. The Class Membershall have until the Claim Form Deadline or 30-days after the Settlement

Administrator sends the e-mail to the Class Member regarding thedeficiencies in the Claim Form, whichever is later, to cure the errorsand/or omissions in the Claim Form.

A Class Member is not entitled to Class Relief if he/she submits a Proof of

Claim Form after the Proof of Claim Form Deadline, if the Proof of Claim

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Form is incomplete after an opportunity to cure any errors andloromissions, or contains false information.

f. The Settlement Administrator shall have sole and final authority fordetermining if Class Members' Proof of Claim Forms are complete andtimely, in which case they will be accepted as Approved Claims. TheSettlement Administrator may reject, accept in part, or accept in wholeany claim submitted, and may, upon its sole discretion, request additionalinformation prior to rejecting, accepting in part, or accepting in whole anyclaim submitted.

g. Within fourteen (14) days of completion of its review of the Proof ofClaim Forms, the Settlement Administrator will submit to the Parties areport listing all Approved Claims. The Settlement Administrator willinform Nike of the number of Approved Claims and the total money and

gift cards necessary to satisfy those Approved Claims. Nike will providethe necessary money and gift cards to the Settlement Administrator within

forty (40) days of being provided with the information described above in

this sub-paragraph. The funds provided to the Settlement Administrator

will be maintained by an escrow agent as aCourt-approved QualifiedSettlement Fund pursuant to Section 1.468B-1 et seq. of the TreasuryRegulations promulgated under Section 468B of the Internal RevenueCode of 1986, as amended, and shall be deposited in an interest-bearing

account.

h. Prompt payment shall be made by the Settlement Administrator on

Approved Claims after the Effective Date of the settlement. Checks will

be mailed to Class Members with Approved Claims who opted for money.

Gift cards may be mailed or e-mailed to Class Members with ApprovedClaims who opted for gift cards. The Settlement Administrator shall use

the addresses and e-mail address provided by the Class Members on theApproved Claims.

The Settlement Administrator shall notify the Parties that all ApprovedClaims have been paid within 10 days of the last such payment.

j. In the event that checks sent to Class Members are not cashed within one(1) year of their mailing date, whether because the checks were notreceived or otherwise, those checks will become null and void and acorresponding amount of the null and void check will be paid through cypres to Partnership for a Healthier America. The Class Members who didnot cash their checks, whether or not they were actually received, shall notreceive any payment from this Settlement Agreement. The Court may.revise this cy pres provision as necessary without terminating or otherwiseimpacting this settlement, provided the Court's revision does not increasethe amount that Defendants would otherwise pay under this SettlementAgreement.

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VI. RELEASE

47. In addition to the effect of any final judgment entered in accordance with thisAgreement, upon final approval of this Agreement, and for other. valuableconsideration as described herein, Releasees shall be completely released,acquitted, and forever discharged from any and all Released Claims as defined inthis Section arising on or after January 19, 2012.

48. Except as specifically provided for below in this Section, "Released Claims" shallmean any and all claims against Releasees whatsoever arising out of, related to, orconnected with the design, manufacturing, pricing, advertising, describing,representing, marketing, offering, promoting, facilitating, providing, warrantying,replacing, repairing, or selling of the Nike+ FuelBand in the United States thatrelate to the Nike+ FuelBand. "Released Claims" include all claims that were orcould have been asserted in the Litigation, regardless of whether such claims areknown or unknown, filed or unfiled, asserted or as yet unasserted, existing orcontingent, and regardless of the legal theory or theories of damages involved.

49. "Released Claims" expressly excludes any warranty claims that are in no wayrelated to the Nike+ FuelBand's ability to monitor, track, record, display,calculate, estimate, compute and/or report a user's activity and calories burned.

50. "Released Claims" expressly excludes any claims and/or damages for personalinjuries in any way related to the Nike+ FuelBand.

51. As of the Effective Date, and with the approval of the Court, all Releasors herebyfully, finally, and forever release, waive, discharge, surrender, forego, give up,abandon, and cancel any and all Released Claims against Releasees. As of theEffective Date, all Releasors will be forever barred and enjoined from prosecutingany action against the Releasees asserting any and/or all Released Claims.

52. -Each Releasor waives California Civil Code Section 1542 and similar provisionsin other states. Each Releasor hereby certifies that he, she, or it is aware of andhas read and reviewed the following provision of California Civil Code Section1542 ("Section 1542"):

A general release does not extend to claims which thecreditor does not know or suspect to exist in his or herfavor at the time of executing the release, which if knownby him or her must have materially affected his or hersettlement with the debtor.

53. The provisions of the release set forth above shall apply according to their terms,regardless of the provisions of Section 1542 or any equivalent, similar, orcomparable present or future law or principle of law of any jurisdiction.

54. Each Releasor waives any and all defenses, rights, and benefits that may be

derived from the provisions of applicable law in any jurisdiction that, absent such

waiver, may limit the extent or effect of the release contained in this Agreement.

55. The Parties and each member of the proposed Settlement Class agree that the

amounts to be paid under this Settlement Agreement to each Class Member

represent the satisfaction of that Class Member's claims for compensatory

damages for the Released Claims. No portion of such settlement represents the

payment of punitive or exemplary damages. Nonetheless, in consideration for the

satisfaction of each Class Member's claim for compensatory damages, claims for

punitive or exemplary damages shall be released as provided in Section VI.

VII. CERTIFICATION OF THE SETTLEMENT CLASS AND RELATED MOTIONS

56. This Settlement shall be subject to approval of the Court. As set forth in Section

XIV, Nike and Apple shall have the right to withdraw from the Settlement if the

Court does not issue any of the requested orders (including the Order and

Judgment) or if the Settlement Class is not certified, among other things.

57. Plaintiff shall submit to the Court a motion (the "Motion"): (a) for certification of

a Class for settlement purposes; and (b) for preliminary approval of the

Agreement, and authorization to disseminate notice of Class certification, the

settlement, and the final judgment contemplated by this Agreement to all potential

Class Members. The Motion shall include: (i) the definition of the Class fox

settlement purposes asset forth in Section III of this agreement; (ii) a proposed

form of, method for, and date of dissemination of notice; (iii) a proposed form of

preliminary approval, (iv) a proposed Proof of Claim Form; and (v) a date for the

final. approval hearing. The text of the items referred to in clauses (i) through (v)

above shall be agreed upon by the parties before submission of the Motion. The

Motion shall be accompanied by a proposed order for preliminary approval of the

settlement substantially in the form attached hereto as E~ibit 3.

VIII. NOTICE TO PROPOSED CLASS MEMBERS

58. List of Potential Class Members

a. Nike, with the assistance of the Settlement Administrator as appropriate,

shall create a list of potential Class Members, based on readily available

information already within its possession ("List of Potential Class

Members").

b. The List of Potential Class Members shall include the names, e-mail

addresses, and mailing addresses of potential Class Members, to the extent

such information is readily available.

c. The Settlement Administrator shall keep the List of Potential Class

Members confidential. Absent a Court order, the SettlementAdministrator shall not release the List of Potential Class Members to

10

persons other than (1) Class Counsel; (2) Counsel and/or (3) under. seal tothe Court. The List of Potential Class Members is subject to theconfidentiality provisions of the protective order issued in this Action.

59. Type of Notice Required

a. The Class Settlement Notice, which shall be substantially in the form of

E~ibits 4-6 attached hereto, shall be used for the purpose of informingproposed Class Members, prior to the fairness hearing before the Court("Fairness Hearing"), that there is a pending settlement, and further (a)inform Class Members as to how they may obtain a copy of the Proof of

Claim Form; (b) protect their rights regarding the settlement; (c) requestexclusion from the Class and the proposed settlement, if desired; (d) object

to any aspect of the proposed. settlement; and (e) participate, if desired, in

the Fairness Hearing. Finally, the Notice shall make clear the binding

effect of the settlement on all persons who do not timely request exclusion

from the Class.

b. Dissemination of the Notice shall be the responsibility of the SettlementAdministrator. The text of the Notice shall be agreed upon by the Parties,

and shall be substantially in the forms attached as E~ibits 4-6 hereto.

c. Individual notice shall be e-mailed to the List of Potential Class Members

(substantially in the form of Exhibit 4) where possible and by mailing

(substantially in the form of Exhibit 5) where e-mail delivery is notpossible.

d. Additionally, notice of the settlement shall be posted on the SettlementAdministrator's website and published in an agreed upon nationalpublication (substantially in the form of Exhibit 6).

60. Notice Deadline

a. Notice shall be sent to persons on the List of Potential Class Memberswithin 30 days after the date that the Court enters the order preliminarilyapproving the Settlement, or such other date that the Court may set("Notice Deadline").

IX. OPT-OUTS

61. Opt-Out Period

a. Class Members will have up to and including 60 days following the NoticeDeadline to opt out of the settlement in accordance with this Section (the"Opt-Out Period"). If the settlement is finally approved by the Court, allClass Members who have not opted out by the end of the Opt-Out Periodwill be bound by the Settlement and the Class Release, and the relief

11

provided by the Settlement will be their sole and exclusive remedy for theclaims alleged by the Class.

62. Opt-Out Process

a. Any potential Class Member who wishes to be excluded from the Classmust provide a request for exclusion to the Settlement Administrator,

known as an "Opt-Out," on the form available on the SettlementAdministrator's website.

b. In order to be valid, the Opt-Out must be on the form available on the

Settlement Administrator's website, and it must state the following in

writing: (a) the Class Member's name, address, and the telephone number,

and (b) that the Class Member wishes to be excluded from the Class. An

original Opt-Out form must be signed by the Class Member and must be

mailed to the address provided in the Class Notice. The Opt-Out Form

shall be substantially in the form of Exhibit 7. An Opt-Out signed by

counsel shall not be sufficient. The Opt-Out request must be postmarked

or received within the Opt-Out Period.

c. Within three (3) business days after the Opt-Out Period, the SettlementAdministrator shall provide Counsel a written list reflecting all timely and

valid requests for exclusion from the Class.

d. A list reflecting all timely and valid requests for exclusion shall also be

filed with the Court at the time of the motion for final approval of the

settlement.

X. OBJECTIONS

63. Class Members may object to this Agreement up to and including the date ordered

by the Court in the Preliminary Approval Order.

64. .The Parties will request that the Court order that any Class Member who has any

objection to certification of the Class, or to approval of this Settlement Agreement

or any terms hereof, or to the approval process must send a letter providing:

a. the name and case number of this lawsuit (Levin v. Nike, Inc. et al., CaseNo. BC509363 (L.A. Super. Ct.));

b. the objector's full name, current address and phone number;

c. proof of purchase of a Nike+ FuelBand and/or a serial number for theNike+ FuelBand that qualifies him/her/it as a Class Member;

d. the reasons why the objector objects to the Settlement along with anysupporting materials;

12

e. information about other objections the objector or his or her lawyers)

have made in other class action cases in the last four (4) years; and

f. the objector's signature.

65. The Parties will request the Court to set the Objection Deadline 30 days before the

Fairness Hearing. The Parties will further request that the Court order that

objections must be mailed to all four (4) of the following:

Clerk of the CourtCentral Civil West Courthouse600 South Commonwealth Ave.Los Angeles, CA 90005

Thomas V. GirardiGirardi ~ Keese1126 Wilshire Blvd.Los Angeles, CA 90071

Paul N. PhilipsLAW OFFICES OF PAUL N. PHILIPS, APLC,

9255 W. Sunset Blvd., Suite 920Los Angeles, CA 90069

Austin V. SchwingGibson, Dunn & Crutcher LLP555 Mission Street, Suite 3000San Francisco, CA 94105

66. The Parties will request that the Court order that failure to comply timely and

fully with these procedures shall result in the invalidity and rejection of an

objection. No Class Member shall be entitled to be heard at the Fairness Hearing

(whether individually or through the objector's counsel), or to object to

certification of the Class or to the Settlement Agreement, and no written

objections or briefs submitted by any Class Member shall be received or

considered by the Court at the Fairness Hearing, unless written notice of the Class

Member's objection and any brief in support of the objection have been filed with

the Court and served upon the Counsel not later than 30 days before the date of

the Fairness Hearing.

67. The Parties will request that the Court order that the Court, within its discretion,

may exercise its right to deem any objection as frivolous and award appropriate

costs and fees to the Parties opposing such objection(s).

68. The Parties will request that the Court order that Class Members who fail to file

and serve timely written objections in accordance with this Section shall be

deemed to have waived any objections and shall be foreclosed from making any

13

objection (whether by appeal or otherwise) to the certification of the Settlement

Class or to the Settlement Agreement.

XI. FAIRNESS HEARING

69. Together with the motion for preliminary approval of the Settlement Agreement,

the Parties will jointly request that the Court hold a Fairness Hearing.

70. At the Fairness Hearing, the Parties will request the Court to consider whether the

Class should be certified pursuant to sections 382 and 1781 of the California Code

of Civil Procedure for settlement, and, if so, (1) consider any properly filed

objections to the Settlement Agreement, (2) determine whether the Settlement

Agreement is fair, reasonable, and adequate, was entered into in good faith and

without collusion, and should be approved, and shall provide findings in

connection therewith, and (3) enter the Order and Judgment, including final

approval of the Settlement Class and the Settlement Agreement.

XII. ORDER AND JUDGMENT

71. The Parties shall jointly seek entry of an Order and Judgment, the text of which

Plaintiff, Nike, and Apple shall agree upon. The orders, motions or stipulation to

implement this Section shall, among other things, seek or provide for a release of

the Releasees of the Released Claims and waiving any rights of appeal.

72. .The Parties shall jointly submit to the Court a proposed Order and Judgment,

substantially in the form attached hereto as E~ibit 8.

73. Class Counsel shall use their best efforts to assist Releasees in obtaining dismissal

with prejudice of any Related Actions filed or maintained by any potential Class

Member, whether in state court, federal court, or any arbitral forum.

XIII. BAR ORDER

74. As part of the Order and Judgment, the Court shall issue a bar order and

permanent injunction against any and all pending or future claims by Class

Members against Releasees raising or arising out of a Released Claim.

75. The bar order and permanent injunction shall enjoin and forever bar any and all

Class Members from commencing and/or maintaining any action, legal or

otherwise, against Releasees raising or arising out of a Released Claim.

76. This provision is not intended to prevent or impede the enforcement of claims or

entitlement to benefits under this Settlement Agreement.

XIV. TERMINATION OF THE SETTLEMENT

77. The settlement is conditioned upon preliminary and final approval of the Parties'

written Settlement Agreement, and all terms and conditions thereof without

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material change, amendments, or modifications by the Court (except to the extent

such changes, amendments or modifications are agreed to in writing between the

Parties). All Exhibits attached hereto are incorporated into this Settlement

Agreement. Accordingly, this Settlement Agreement shall be terminated and

cancelled, at the option of any Party, upon any of the following events:

a. This Settlement Agreement is changed in any material respect to which

the Parties have not agreed in writing.

b. The Court declines to enter the Preliminary Approval Order;

c. The Fairness Hearing is not held by the Court;

d. The Order and Judgment approving the Settlement and certifying the

Settlement Class for the Class Period as provided in this Agreement is not

entered by the Court or is reversed by a higher court; or

e. Another party to this Settlement Agreement materially breaches the

Settlement Agreement and such breach materially frustrates the purposes

of this Agreement;

78. This Settlement Agreement shall be terminated and cancelled, at the sole and

exclusive discretion of Nike and Apple, upon any of the following events:

a. The notice required by the Court is inconsistent with Section VIII;

b. The Proof of Claim required by the Court is inconsistent with Section V;

c. The bar order and permanent injunction as provided in Section XII are not

entered by the Court as provided in that Section;

d. If at any time prior to final approval any governmental entity files or

indicates its intention to investigate or file or bring a claim, cause of

action, complaint, petition, or other action in any administrative, legal,

equitable or governmental proceeding against Nike or Apple relating to

the Nike+ FuelBand;

e. Greater than 5% of the Class Members Opt-Out; or

f. The Court does not permit the amendment of the operative complaint as

set forth in E~ibit 1 prior to its order on preliminary approval of this

Settlement Agreement.

79. In the event the Settlement Agreement is not approved or does not become final,

or is terminated consistent with this Settlement Agreement, the Parties, pleadings,

and proceedings will return to the status quo ante as if no settlement had been

negotiated or entered into, and the Parties will negotiate in good faith to establish

anew case schedule.

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XV. ATTORNEY'S FEES AND SERVICE AWARD

80. Prior to or at the same time as Plaintiff seeks final approval of the Settlement

Agreement, Class Counsel shall petition the Court for an award of attorneys' fees

and costs not to exceed Two Million, Four Hundred Thousand Dollars

($2,400,000.00).

81. Nike and Apple agree not to oppose an application for attorneys' fees and costs by

Class Counsel in an amount not more than Two Million, Four Hundred Thousand

Dollars ($2,400,000.00).

82. Nike will be wholly responsible for paying Class Counsel's attorneys' fees and

costs awarded by the Court, but in no event will Nike's responsibility or liability

for attorneys' fees and costs exceed $2,400,000.00. Apple will have no

responsibility or liability for attorneys' fees and costs. Defendants shall have no

obligation for attorneys' fees and costs to any counsel representing or working on

behalf of either an individual Class Member or the Class (other than "Class

Counsel"), including but not limited to any objector to this Settlement Agreement.

83. Nike and Apple will have no responsibility, obligation or liability for allocation of

fees and costs among Class Counsel.

84. Prior to or at the same time as Plaintiff seeks final approval of the Settlement

Agreement, Class Counsel shall petition the Court for a service award for Plaintiff

Class Representative in an amount not to exceed $1,000.00, and Nike and Apple

agree that they will not oppose such a request. Apple will have no responsibility

or liability for the service award.

85. The attorneys' fees and costs and service award awarded by the Court shall be

paid by Nike within thirty (30) days of the Effective Date, provided Plaintiff s

Counsel has provided Nike and Apple's Counsel wiring instructions.

XVI. REPRESENTATIONS

86. The Parties and Counsel agree that the Settlement Agreement provides fair,

equitable and just compensation, and a fair, equitable, and just process for

determining eligibility for compensation for any given Class Member who has

asserted a claim arising from, or related to, the Released Claims.

87. Except as such agreement may be forbidden by the equivalent of Rule 1.16(d) or

Rule 5.6(B) of the ABA Model Rules of Professional Conduct in the jurisdictions

in which Class Counsel practice law or whose rules might otherwise apply, Class

Counsel represents and agrees that, within 30 days after the conclusion of theLitigation, he or she will return to Nike's and Apple's Counsel, ox certifydestruction of, all materials produced by Nike and Apple, whether in their

possession or in the possession of their clients, experts, consultants or other

persons within their control, and shall provide a declaration to Nike and Apple

that such return or destruction has occurred.

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88. The Parties represent that they have obtained the requisite authority to enter this

Settlement Agreement in a manner that binds each party to its terms.

89. The Parties, Counsel and Class Counsel shall use their best efforts to conclude the

settlement and obtain the Order and Judgment, including affirmatively supporting

the settlement in the event of an appeal.

90. Any Class Member (or his or her attorney) who submits false or intentionally

misleading information, through any form of deception, dishonesty or fraud shall

be subject to appropriate sanctions (including monetary sanctions and costs).

91. Should the Parties be required to submit any information or documentation to the

Court to obtain preliminary approval, such information shall be, to the full extent

permitted, for review by the Court in camera only, to the extent that Class

Counsel, Nike and/or Apple request that information to remain confidential and

the Court grants any such request.

92. The Parties specifically acknowledge, agree and admit that this Settlement

Agreement and its e~ibits, along with all related drafts, motions, pleadings,

conversations, negotiations, correspondence, orders or other documents shall be

considered a compromise within the meaning of California Evidence Code

§ 1152, Federal Rules of Evidence Rule 408, and any other equivalent rule of

evidence of any state, and shall not (1) constitute, be construed, be offered, or

received into, evidence as an admission of the validity of any claim or defense, or

the truth of any fact alleged or other allegation in the Litigation or in any other

pending or subsequently filed action, or of any wrongdoing, fault, violation of

law, or liability of any kind on the part of any Party, or (2) be used to establish a

waiver of any defense or right, or to establish or contest jurisdiction or venue.

93. The Parties also agree that this Settlement Agreement and its e~ibits, along with

all related drafts, motions, pleadings, conversations, negotiations, correspondence,

orders or other documents entered in furtherance of this Settlement Agreement,

and any acts in the performance of this Settlement Agreement are not intended to

establish grounds for certification of any class involving any Class Member other

than for certification of the Settlement Class.

94. The provisions of this Settlement Agreement, and any orders, pleadings or other

documents entered in furtherance of this Settlement Agreement, may be offered or

received in evidence solely (1) to enforce the terms and provisions hereof or

thereof, (2) as may be specifically authorized by a court of competent jurisdiction

after an adversary hearing upon application of a Party hereto, (3) in order to

establish payment, or an affirmative defense of preclusion or bar in a subsequent

case, (4) in connection with any motion to enjoin or stay any other action related

to the Nike+ FuelBand, or (5) to obtain Court approval of the Settlement

Agreement.

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95. Except as provided in the Notice provisions herein, below, or with the priorwritten consent of the other Party, there shall be no comments made to the pressor any third party (references to "third party" do not apply to employees, agents,

accountants, or directors of a Party or a Party's corporate affiliates who have aneed to receive confidential information about the terms of the settlement), or any

other disclosure by or through the Parties or their attorneys or agents, comprising

opinions as to the Litigation. Nor may any. Party (or their attorneys or agents)release any information relating to the litigation that is not already publiclyavailable. The Parties (including their attorneys or agents) may, however,respond to media inquiries regarding the terms of the Settlement Agreement. If

preliminary Court approval for the settlement is denied, the Parties and theirattorneys and agents shall not make any comments to the media or other thirdparties regarding the proposed settlement. Nothing in this provision shall beinterpreted to limit representations that the Parties or their attorneys may make to

the Court to assist it in its evaluation of the proposed Settlement; nor shall this

provision prohibit Class Counsel from having attorney-client communications

directly with Class Members, including postings of the Settlement on Class

Counsel's law firm(s)' website(s). If a Party is required by a valid, enforceable

subpoena or government information request to disclose the settlement or

information about the settlement, such Party shall provide reasonable prior notice

(to the extent permitted by applicable law) to the other Party to allow the other

Party to seek to prevent such disclosure. A party may also provide necessary and

accurate information about the settlement to its shareholders and other persons or

entities as required by securities laws or other applicable laws or regulations.

96. This agreement shall be deemed executed as of the date that the last party

signatory signs the agreement. This agreement shall fully supersede any previous

agreement entered into by the parties.

[Remainder of this page intentionally left blank.]

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IN WITNESS HEREOF, the Parties have executed this Settlement Agreemenf by their

duly authorized representatives on the dates stated below.

For Plaintiff and the Proposed Settlement Class.

By:

Print Name: Carolyn Levin

Date: ~! y ~~l LO ~

By: ~y:

Print Name: Paul N. Philips Print Name: Thomas V. Giracdi

LAW OFFICES OF PAUL N. PHILIPS, APLC, GIRARDI ~ KEESE

9255 W. Sunset Blvd., Suite 920 1126 Wilshire Blvd..

Los Angeles, CA 90069 Los Angeles, CA 90071

Date: Date•

For Nike, Inc. For Apple Inc.

By: By;

Date: Date:

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IN WITNESS HEREOF, the Parties have executed this Settlement Agreement by,'tlxeirduly authorized representatives on the dates stated below.


By:


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IN WITNESS HEREOF, the Parties have executed this Settlement Agreement by heirduly authorized representatives on the dates stated below.


By:


Date:

By: By:

Print Name: Paul N. Philips Print Name. Thort}as V. Girardi

LAW OFFICES OF PAUL N. PHILIPS, APLC, GTRARDI ~ KEESE

9255 W. Sunset Blvd., Suite 920 1126 Wilshire Blvd.

Los Angeles, CA 90069 Los Angeles, CA 90071

Date: Date• ~'

For Nike, Inc. For Apple Inc.

By: gy; .~

Date: Date: i

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IN ~~'ITNE,~~S l:~T:TtFC)F; tltG f'~~•ti~:s htivc wxc~eute<i this Settlement ~~;ree~nent b~= theirduly ,~~~tl7orir~~i t~epr~sea~iz~e uses ~n the dates sts~tcc~ kaelar~v.

I~c~r T'l~~intift'ancl the ~"rr~p~cys+~c1 Seti~en~ent Cls~~s.

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I'rinc N~ime: £'uul N. i'hli~ysl.,~tk~ t:3rt t~°c:~ ~~r~ P~[[.. N:1'~1tl,Xr~~, ~PI~C".~,9?:i~ ~'. ~ur~se~ C3d~cl., ~eiite ~2ql.,t~s ~~i~~les, (:`~ ~(l~(it~

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IN WITNESS HEREOF, the Parties have executed this Settlement Agreement by their

duly authorized representatives an the dates stated below.


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Date:

Print Name:.Paul N. PhilipsLAW OFFICES OF PAUL N. PHILIPS, APLC,

92SS W, Sunset Blvd., Suite 920Los ,Angeles, CA 90069

Date;

For Nike, Inc.

By:

Date: ..~ 2 ~ ~t$~

sy:

Print Name: Thomas V. Giraxdi~rIItARDI ~ KEESE

1126 Wilshire Blvd,.Los Angeles, CA 90071

Date:

Date:

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For Apple Inc.

EXHIBIT 1

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GIRARDI ~ KE E S ETHOMAS V. GIRA.RDI, SBN 36603tgirardi girardikeese.com1126 Wi shire BoulevardLos Angeles, California 90017Telephone: (213) 977-0211 /Facsimile: (213) 481-1554

LAW OFFICES OF PAUL N. PHILIPS, APLCPAUL N. PHILIPS, CA Bar No. 187928pnp ~pn~plegal.com92S West Sunset Boulevard Suite 920Los Angles, California 9006Telephone: (323) 813-1126 /Facsimile: (310) 854-6902

Attorneys for PLAINTIFF and the CLASS

SUPERIOR COURT FOR THE STATE OF CALIFORNIA

COUNTY OF LOS ANGELES

CAROLYN LEVIN in Her Individual CASE NO.: BC 509 363and Representative rapacity on Behalfof a Class of All Persons Similarly- SECOND AMENDED COMPLAINTSituated,

Plaintiff,

v.

NIKE INC. • an Oregon Corp oration;APPLE INCA. a California Corporation;and DOES 1 trough 10, inclusive,

Defendants.

1. VIOLATION OF CALIFORNIABUSINESS &PROFESSIONS CODE§§ 17200, ET SEQ.;

2. VIOLATION OF CALIFORNIABUSINESS &PROFESSIONS CODE§ § 17500, ET SEQ.

3. BREACH OF WARRANTY

4. VIOLATION OF CALIFORNIA CIVILCODE §§ 1750, ET SEQ.

5. COMMON COUNTS

DEMAND FOR JURY TRIAL

COMPLAINT FOR DAMAGES

COMES NOW PLAINTIFF Carolyn Levin, in her individual and representative

capacities and on behalf of herself and all persons similarly-situated, by her undersigned

SECOND AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL

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counsel, and alleges as follows:

PARTIES

1. Plaintiff Carolyn Levin ("Levin") is an individual residing in Los Angeles

County, California. Levin purchased several Nike+ FuelBands during the class period on

about the dates set forth herein.

2. Defendant Nike, Inc. ("Nike") is and was at all times relevant herein an

corporation doing substantial business in the State of California, County of Los Angeles.

3. Defendant Apple, Inc. ("fipple") is and was at all times relevant herein a

California corporation, and therefore a citizen of California, operating out of and doing

substantial business in the State of California, County of Los Angeles.

4. Nike and Apple are referred to collectively herein as "Defendants." For at least

some portion of and during the class period described below, each of the Defendants

advertised, marketed and sold Nike's Nike+,FuelBand product to Plaintiff and others

similarly-situated.

5. The true names and capacities of Defendants DOES ONE through TEN are

unknown to Plaintiff, and Plaintiff will seek leave of court to amend this Complaint to

allege such names and capacities as soon as they are ascertained. Each of the Defendants

concerned herein was the agent, joint venturer or employee of each of the remaining

Defendants, and in doing the things hereinafter alleged, each was acting in the course and

scope of said agency, employment or joint venture with advance knowledge of,

acquiescence in or subsequent ratification of the acts of each and every other remaining

Defendant.

CLASS ACTION ALLEGATIONS

6. "Plaintiff brings this action on behalf of herself and as a representative of all

others who are similarly-situated and who fall within the following class definition: All

individuals or entities who purchased a Nike+ FuelBand on or after January 19, 2012 (the

"Class Period").

7. Those individuals and entities are herein referred to as "Class Members" or

a


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"the Class." The proposed "Class Representative" is Levin, who falls within the definition

of a Class Member.

8. The Class Members are so numerous and geographically diverse that joinder is

impracticable. On information and belief there have been hundreds of thousands of Nike+

FuelBands sold throughout the world, and also on information and belief, there are hundre~

of thousands of Class Members spread throughout the United States including, without

limitation, throughout the State of California.

9. The Class Representative will fairly, adequately, and vigorously represent the

interests of the Class, and is highly motivated to prosecute the within action.

10. Questions of law and fact common to all potential Class Members predominate

over any questions affecting only individual Class Members. Among the questions of law

~ ~ and fact common to the Class Members are:.

• Whether Defendants misrepresented the ability of the Nike+ FuelBand to

accurately track every calorie burned and step taken by a FuelBand user

engaged in physical activity while wearing the FuelBand;

• Whether Defendants violated California Business &Professions Code

§§ 17200 et seq. by perpetrating unfair or fraudulent acts by means of

misrepresentations to the effect that the Nike+ FuelBand could


engaged in physical activity while wearing the FuelBand;

Whether Defendants violated California Business &Professions Code

§§ 17500 et seq. by affirmatively promulgating and implementing false

and misleading advertising to the specific effect that the Nike+ FuelBand

could accurately track every calorie burned and step taken by a

FuelBand user engaged in physical activity while wearing the FuelBand;

Whether Defendants breached warranties made as to the ability of the

FuelBand to accurately track every calorie burned and step taken by a

FuelBand user engaged in physical activity while wearing the FuelBand;

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• Whether Defendants implemented unfair or deceptive acts or practices in

affirmatively promulgating and implementing false and misleading

advertising to the specific effect that the Nike+ FuelBand could


engaged in physical activity while wearing the FuelBand, thereby

violating California Civil Code §§ 1750 et seq.;

• Whether Defendants misrepresented the ability of the Nike+ FuelBand to

implement algorithms to accurately track, calculate, and report NikeFuel

generated by a user engaged in physical activity while wearing the

FuelBand;

• Whether Defendants violated California Business &Professions. Code

§ § 17200 et seq. by perpetrating unfair or fraudulent acts by means of

misrepresentations to the effect that the Nike+ FuelBand could


generated by a user. engaged in physical activity while wearing the

FuelBand;

• Whether Defendants violated California Business &Professions Code

§§ 17500 et seq. by affirmatively promulgating and implementing false

and misleading advertising to the specific effect that the Nike+ FuelBand

could implement algorithms to accurately track, calculate, and report

NikeFuel generated by a user engaged in physical activity while wearing

the FuelBand;

• Whether Defendants breached warranties made as to the ability of the

FuelBand to implement algorithms to accurately track, calculate, and

report NikeFuel generated by a user engaged in physical activity while

wearing the FuelBand;

• Whether Defendants implemented unfair or deceptive acts or practices

by affirmatively promulgating and implementing false and misleading

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advertising to the specific effect that the Nike+ FuelBand could


generated by a user engaged in physical activity while wearing the

FuelBand, thereby violating California Civil Code §§ 1750 et seq.;

• Whether Defendants caused the Class Members damage by reason of

their misrepresentations;

Whether Defendants unfairly or fraudulently took money from the Class

Members by conduct perpetrated in violation of California Business &

Professions Code § 17200 et seq.;

• Whether Defendants unfairly or fraudulently took money from the Class

Members by conduct perpetrated in violation of California Business &

Professions Code § 17500 et seq.;

• The appropriate measures of legal and equitable relief due to the Class,

and;

• Whether Defendants committed acts with fraud, oppression, and/or

malice.

11. These common questions predominate over all Class Members' claims,

'including those of the Class Representative. Indeed, there is essentially no difference

'between the Class Representative's claims and the other Class Members' claims. As a

result, the Class Representative's claims are typical of, if not identical to, claims owned by

and to be asserted by the rest of the Class Members.

12. Class action treatment is superior to the alternatives, if any, for the fair and

efficient adjudication of the controversy alleged herein. Such treatment will permit a large

number of similarly-situated persons to prosecute their common claims in a single forum

simultaneously, efficiently, and without duplication. Separate trials adjudicating

Defendants' liability will be inefficient, and will create the risk of producing inconsistent

verdicts. Consolidating the litigation of all Class Members will enhance judicial economy

and promote substantial justice. Class treatment will also permit the adjudication of

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relatively small claims by many of the Class Members who could not individually afford to

litigate the claims asserted herein. There exist no difficulties that would preclude class

action treatment of this lawsuit, and no superior alternative exists for the fair and efficient

adjudication of the controversies asserted herein.

13. Concentrating the Class Members' claims in the Los Angeles Superior Court is

preferable to maintaining this action in any other venue. This venue has a logical

connection to the events underlying the action since a substantial number of the Class

Members purchased their Nike+ FuelBands in Los Angeles County and reside here.

VENUE &JURISDICTION

14. Plaintiff files this action in Los Angeles Superior Court, where venue has been

and remains proper under California Code of Civil Procedure § 395.

15. The California Superior Court is the proper jurisdiction for this case pursuant

to 28 U.S,C. § 1332 because:

• A large number of the Class Members are California citizens;

• Apple is a California citizen from whom significant relief is sought by

the proposed Class and whose conduct described herein forms a

significant basis for the claims asserted by the proposed Class;

Plaintiff's and many of the proposed Class Members' principal injuries

resulting from the conduct of each Defendant were incurred in

California, where this action is originally filed; and

• Plaintiff is unaware of any other predecessor class action that asserted

the same or similar factual allegations against any of the defendants on

behalf of the same or other persons. One other proposed action was filed

against Nike several months after this action, but the Court has stayed it

in favor of this action proceeding on its merits, and as of the time of this

filing, the stay remains in effect.

GENERAL ALLEGATIONS

16. Nike has dominated the sports apparel and technology industries for decades,

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and has established itself as a global leader in both the professional and consumer sports

fitness advertising and sales. sectors. The Nike+ FuelBand has been a major component of

Nike's overall equipment sales since its .early 2012 release.

17. Apple has dominated the personal technology industries for decades,

establishing itself as the most widely-known and prolific advertiser and distributor of

personal technology items available to consumers today.

18. Since approximately 2006, Nike and Apple have embarked upon various

partnership ventures in the sporting technology sector, forming a powerful alliance desi

to massively increase profit for both companies, and to supply evolving sporting technology

products to the purchasing consumer such as Levin and others similarly-situated.

19. The Nike+ FuelBand, one such product manufactured, advertised, marketed,

and sold by Defendants, is wearable personal technology in the form of a wristband that

Defendants advertise as capable of tracking every calorie burned and step taken by a

FuelBand user engaged in physical activity while wearing the FuelBand. In particular, both

Defendants consistently advertise to the general public in promotional materials and at

points of sale that the FuelBand "measures each step taken and calorie burned," "[t]racks

steps, calories, and time of day" and "tracks calories burned, steps taken and more." The

FuelBand is also consistently promoted by Defendants as a device capable of using

algorithms to accurately convert physical activity into NikeFuel, a conceptual measurement

of movement, reduced to visual markers on the face of the FuelBand. Specifically, the

FuelBand packaging, promotional materials, and point of sale items indicate that the "Nike

+ FuelBand measures your everyday activity and turns it into NikeFuel."

20. In truth, the Nike+ FuelBand cannot and does not track each calorie burned, or

each step taken, nor does it accurately measure activity for conversion into NikeFuel, and

users experience wildly inaccurate step, calorie burn, and NikeFuel readings when using the

FuelBand. Defendants were aware when the FuelBand was first marketed, advertised and

sold to Levin and the buying public, and remained aware throughout the Class Period, that

the FuelBand was incapable of accurately tracking every calorie burned and step taken by


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FuelBand users, that it was also unable to accurately reflect physical activity in any form of

presentation, whether as NikeFuel or otherwise, and that their advertising was therefore

false and misleading. As a result of Defendants' conduct, buyers of the FuelBand, including

the Class Members, were each in fact misled into purchasing a device that Defendants

purported would accurately perform the tasks referenced herein when it in fact does not and

cannot do so, thereby misleading and damaging consumers including Plaintiff and all others

similarly-situated.

21. Despite their knowledge of the FuelBand's inability to accurately track each of

a user's calories burned, steps taken, or to read or measure physical activity sufficiently to

provide any form of accurate measurement of that activity, during the Class Period

II Defendants promulgated and implemented the false and misleading advertising alleged

herein as part of a business scheme designed to unfairly and unlawfully reap substantial

profits at the expense of Levin and the Class.

22. To accomplish their scheme, Defendants each advertised and offered to the

Class Members, by means of various media, the opportunity to purchase the Nike+

FuelBand. Attached hereto as Exhibits 1-4 are some examples of Defendants'

advertisements. Levin witnessed and received several such offers prior to purchasing any

Nike+ FuelBand, and throughout the Class Period. Examples of the wording of

advertisements and offers Levin witnessed and relied upon prior to purchasing any Nike+

FuelBand included language identified in paragraph 19 above, indicating to Levin that the

FuelBand would track a user's every calorie burned and step taken during activity

undertaken while wearing the FuelBand, and that it would accurately read, measure, and

report a user's level of physical activity in the form of NikeFuel. Levin was subjected to

such advertisements by means of in-store advertising, product packaging, and product

advertisements on the Defendants' respective websites. At all times before Levin purchase

the FuelBands, their purported abilities to specifically track every step taken and calorie

burned, and to accurately report a user's physical activity while wearing the FuelBand (in

the form of NikeFuel), were to Levin the most important, if not only important, features of


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the FuelBand.

23. Levin, like all FuelBand purchasers, reasonably expected that the FuelBands

she purchased were capable of performing the tasks referenced herein, and in fact bought

the devices because she believed, based upon her exposure to Defendants' marketing and

advertisements, that they would in fact accurately perform the tasks referenced herein and in

Defendants' marketing efforts. Based on that expectation, based further on the claims made

by Defendants, and also based upon what Levin believed were trustworthy reputations

enjoyed by Defendants, Levin purchased approximately nine (9) Nike+ FuelBands in Los

Angeles County —one (1) for personal use and approximately eight (8) to give as gifts. Said

FuelBands were purchased at the Nike store at the Grove Shopping Center in Los Angeles

County, and at the Apple Store at the Grove Shopping Center in Los Angeles County.

24. Despite Defendants' promises to Levin, the FuelBands purchased by Levin,

and in fact all of the FuelBands sold by Defendants, are and remain incapable of accurately

performing the functions that Defendants represented at all times relevant they are able to

perform, and Defendants' misrepresentations as such have continued throughout the Class

Period.

25. Throughout the Class Period and continuing to this day, Defendants have

dramatically increased their sales of the Nike+ FuelBand by means of utilizing the false and

misleading representations and advertising promulgated and implemented by them as

alleged herein, and Defendants have failed to remedy the inabilities of the FuelBand as

alleged herein. As a result, despite Defendants' claims that the Nike+ FuelBand accurately

tracks every calorie burned and step taken, and that it can accurately report a FuelBand

'user's physical activity in the form of NikeFuel or in any form, the FuelBand remains

wholly unable to accurately perform the tasks referenced herein, no matter who the user of

the FuelBand is, and no matter what type of activity that user engages in.

////

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CAUSES OF ACTION

FIRST CAUSE OF ACTION: VIOLATION OF CALIFORNIA BUSINESS AND

PROFESSIONS CODE §§ 17200 ET SEQ.

(Against All Defendants by Plaintiff in Her Individual and Representative Capacity on

Behalf of the Class)

26. Plaintiff hereby incorporates by reference all of the above paragraphs as

set forth fully herein in form and substance.

27. By reason of the conduct. alleged herein, Defendants engaged in unlawful,

fraudulent and unfair business practices that included, but were not limited to:

• Misleading Levin and the Class into purchasing the FuelBand, that

Defendants falsely represented was capable of accurately tracking every

calorie burned and step taken as a result of physical activity undertaken

while wearing the FuelBand, and that Defendants also falsely

represented was capable of using algorithms to accurately read, measure,

and report physical activity in the form of NikeFuel, knowing that these

statements were false and likely to induce Levin and the Class Members

into purchasing the FuelBand;

■ Promulgating and implementing advertising that was false and was both

designed to and likely to mislead Levin and the Class in order to reap a

tremendous profit at the respective and collective expense of Levin and

the Class, and;

• Accepting from Levin and the Class payment for Nike+ FuelBands that

were sold under false pretenses and that Defendants knew were not as

Defendants represented them to be, namely, that they could not

accurately perform the functions advertised as Defendants represented

they could.

28. Defendants' actions constitute unlawful business acts or practices within the

meaning of California Business &Professions Code § § 17200 et seq.

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29. Accordingly, Plaintiff may obtain and is entitled to all remedies and penalties

authorized by the statute, including without limitation restitution, disgorgement, injunctive

relief, and other penalties for each illegal or fraudulent business act or practice, and

attorneys' fees pursuant to statute and the Court's equitable powers, in amounts subject to

proof.

SECOND CAUSE OF ACTION: VIOLATION OF CALIFORNIA BUSINESS AND

PROFESSIONS CODE §§ 17500 ET SEQ.





31. As alleged herein, Defendants engaged in false advertising practices that

included, but were not limited to:

• Using false and misleading advertising to offer and induce Levin and the

Class into purchasing the FuelBand, that Defendants falsely represented

was capable of accurately tracking every calorie burned and step taken

as a result of physical activity undertaken while wearing the FuelBand,

and that Defendants also falsely represented was capable of using

algorithms to accurately read, measure, and report physical activity in

the form of NikeFuel, knowing that these statements were false and

likely to induce Levin and the Class Members into purchasing the

FuelBand;

• Promulgating and implementing advertising that was false and was both

designed to and likely to mislead Levin and the Class in order to reap a

tremendous profit at the respective and collective expense of Levin and

the Class, and;

• Accepting from Levin and the Class payment for Nike+ FuelBands that

were marketed and sold under false pretense and that Defendants knew

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were not as Defendants represented them to be, namely, that they could

not track every calorie burned by a FuelBand user as Defendants

represented they could.

32. Defendants' actions constitute unlawful business acts or practices within the

meaning of California Business &Professions Code §§ 17200, et seq.

33. Accordingly, Plaintiff may obtain and is entitled to all remedies and penalties

authorized by the statute, including without limitation restitution, disgorgement, and other

penalties for each illegal or fraudulent business act or practice, and attorneys' fees pursuant

to statute and the Court's equitable powers, in amounts subject to proof.

THIRD CAUSE OF ACTION: BREACH OF WARRANTY





35. Defendants and each of them were sellers of the Nike+ FuelBand to Plaintiff

and others similarly-situated, including the Class.

36. As sellers of such products to Levin and the Class Members, Defendants

implemented the sales, marketing, promotion, and advertising referenced herein, and made

'the representations during the sales transactions concerned herein as such are alleged in

paragraph 19, above. Specifically, Defendants consistently advertised to the general public

in promotional materials and at points of sale, and during the sales transaction from

Defendants to Plaintiff and the Class Members, that the FuelBand "measures each step

taken and calorie burned," "[t]racks steps, calories, and time of day" and "tracks calories

burned, steps taken and more." The FuelBand was also consistently promoted by

Defendants through the promotion and sales process as a device capable of relying on

algorithms to accurately convert physical activity into NikeFuel, a conceptual measurement

~ of movement, reduced to visual markers on the face of the FuelBand. Specifically, the

FuelBand packaging, promotional materials, and point of sale items indicate that the "Nike

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+ FuelBand measures your everyday activity and turns it into NikeFuel." All such

representations were made to the buying public, including without limitation Plaintiff and

the Class, as express warranties regarding the purported abilities of the FuelBand.

37. In making the representations alleged herein, including those regarding the

FuelBand's ability to count each step taken by a user, its ability to count each calorie bL

by a user, and its ability to implement algorithms to accurately track, record, and report

physical activity in the form of NikeFuel, Defendants made implied warranties of

merchantability as to the subject products and warranted that they were fit for their

particular and anticipated purposes.

38. As alleged herein, the Nike+ FuelBand is unable and was never able to

the tasks it was represented ,and warranted to be capable of performing, and in making the

representations made as alleged herein with knowledge that the product was unable to

''perform in conformity with the warranties made, Defendants breached said warranties.

39. Nike has developed and maintained a network of authorized distributors and

retailers, including without limitation Defendant Apple, all of which were at relevant times

authorized Nike resellers of the FuelBand, and none of which was, or was ever intended to

be, an ultimate consumer of the FuelBand. Instead, Plaintiff and those similarly-situated

j were the intended ultimate consumers of the FuelBand, and Defendants intended the

,warranties alleged herein to inure only to those ultimate consumers.

40. Within a reasonable time after Plaintiff knew of the warranty breaches alleged

herein, Plaintiff provided the manufacturer with notice of the same, and of Plaintiff's intent

to look to Defendants for damages.

41. As a direct and proximate result of the conduct of Defendants, in making the

'misrepresentations alleged herein, and in failing to replace the FuelBands Plaintiff

purchased, or any of them, with devices conforming to the warranties and representations

made, Defendants breached their warranties as to the FuelBand.

42. As a direct and proximate result of the warranty breaches alleged herein,

Plaintiff and the Class Members suffered damage, injury, loss, and harm, all according to

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proof.

FOURTH CAUSE OFACTION: VIOLATION OF CALIFORNIA CIVIL CODE

§§ 1750, ET SEQ.



44. The FuelBands that are the subject of this action qualify as "goods" within the

meaning of California Civil Code section 1761, subsection (a), of the Consumers Legal

Remedies Act, codified at California Civil Code sections 1750 et seq.

45. Defendants are "persons" within the meaning of California Civil Code section

1761, subsection (c), and Plaintiff and the Class Members are "consumers" within the

meaning of subsection (d) of section 1761.

46. The purchase and sale agreements between Plaintiff and the Class Members on

the one hand, and Defendants on the other, qualify as "transactions" within the meaning of

California Civil Code section 1761, subsection (e).

47. Defendants' conduct as alleged herein constituted unfair, false, misleading and

deceptive practices, and was undertaken unlawfully, with the intent of inducing Plaintiff

the Class Members to enter into transactions which would result in unjust pecuniary and

other loss to them, and unjust pecuniary and other gain to Defendants.

48. As a direct and proximate result of the conduct of Defendants as alleged

Plaintiff and the Class Members were damaged, and are entitled to and seek relief including

but not limited to restitution, and an injunction prohibiting Defendants from engaging in

unfair, false, misleading and deceptive practices as alleged herein, in addition to those other

remedies the Court may deem proper according to proof;

FIFTH CAUSE OF ACTION: COMMON COUNTS


j set forth fully herein in form and substance.

50. Defendants' conduct as alleged herein is such that, and has created such

damage to Plaintiff and the Class that, no adequate remedy at law exists, and Plaintiff and

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the Class are thus entitled to and seek remedies at equity as alleged herein.

51. The purchase and sale transactions between Defendants on the one hand, and

Plaintiff and the Class Members on the other, constituted quasi-contracts implied in law,

and were backed and supported by the promises of Defendants made in assumpsit.

52. Inasmuch Defendants deceived Plaintiff and the Class Members into entering

the agreements alleged herein, and as Defendants enjoyed pecuniary gain at the expense of

Plaintiff and the Class Members as a proximate result thereof, Defendants were unjustly

enriched, entitling Plaintiff and the Class Members to an injunction, restitution of ill-gotten

gains, and disgorgement of Defendants' profits.

53. Plaintiff and the Class Members expended funds to purchase the FuelBands

and therefore a disputed res is at issue. Insofar as said funds rightfully belong to Plaintiff

and the Class Members as a result of the unlawful means by which Defendants obtained

them, the funds and Defendants are subject to, and Plaintiff seeks, the imposition and

equitable remedy of a constructive trust over the funds, to prevent their waste and to prevent

Defendants' continued unjust enrichment.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff prays for judgment and relief as follows:

1. For a declaration that this lawsuit may properly be maintained as a class action,

and a declaration certifying the Class Representative's claims herein;

2. For general damages in an amount to be proven at trial;

3. For special damages in an amount to be proven at trial;

4. For disgorgement of profits and for restitution in amounts to be proven at trial;

5. For injunctive relief;

6. For any other available penalties for each illegal or fraudulent business act or

practice;

7. For attorneys' fees pursuant to statute and the Court's equitable powers, in

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amounts subject to proof;

8. For exemplary damages pursuant to California Code of Civil Procedure §3294;

9. For prejudgment interest; and

10. For such other and further relief as maybe just and proper.

Dated: Apri127, 2015 LAW OFFICES OF PAUL N. PHILIPS, APLC

PAUL N. PHILIPSAttorneys for Plaintiff

DEMAND FOR JURY TRIAL

Plaintiff hereby demands trial of the within causes by jury.

Dated: April 27, 2015

I~

LAW OFFICES OF PAUL N. PHILIPS, APLC

PAUL N. PHILIPSAttorneys for Plaintiff

16


EXHIBIT 2

Levin et al. v. Nike, Inc. et al., Case No. BC509363 (L.A. Super. Ct.)

CLAIM FORM

To receive benefits from this Settlement, yourclaim form must be postmarked or received on or before [Date], 2015.

You must submit your claim form online on this website

You must complete all sections in order to receive any benefits from this Settlement unless otherwise indicated.

1. CLAIMANT INFORMATION:

FIRST NAME MI LAST NAME

STREET ADDRESS

CITY STATE ZIP ZIP4 (optional)

EMAIL ADDRESS

2. Provide the Class Member ID from email notice (leave blank if you do not have it):

3. Provide the serial numbers) for the Nike'+ FuelBand(s) that you purchased from January 12, 2012 to [date].

The serial number is an 11- or 13-digit number located on a visible metal plate on the back of your Nike+ FuelBand

device (the portion that faces your wrist when the band is worn). You must enter a serial number for your claim to be

processed.

Serial Number:

Serial Number:

Serial Number:

Serial Number:

Serial Number:

If you have more than five serial numbers to enter, fill out this form completely and attach a piece of paper with the

serial numbers and mail it to Gilardi & Co., [insert address.

4. Selection of Settlement Benefit. For each Nike+ FuelBand you purchased from January 12, 2012 to [date], you

can select either a $15 payment in the form of a check that will be mailed to the address you provided above OR a $25

gift card redeemable at Nike-owned stores in the U.S. and Puerto Rico and online at Nike.com. The gift card will be

freely transferable and will not expire.

Make your selection: ❑Check ❑Gift Card

By submitting this form, you are declaring, under penalty of perjury, that you purchased a Nike+ FuelBand befinreen

January 19, 2012 and [date], and that you have accurately filled out the information above to the best of your

knowledge. [CLICK TO SUBMIT]

EXHIBIT 3

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Gibson, Dunn 8Crutcher LLP




Plaintiff,

v.


Defendant.

CASE NO. BC509363

[PROPOSED ORDER PRELIMINARILYAPPROVING CLASS ACTIONSETTLEMENT AGREEMENT,CONDITIONALLY CERTIFYINGSETTLEMENT CLASS, DIRECTINGNOTICE OF PROPOSED CLASSSETTLEMENT, AND SCHEDULING AFAIRNESS HEARING DATE


Place: Department 322

WHEREAS, Carolyn Levin and Defendants Nike, Inc. and Apple Inc. have reached a

proposed settlement and compromise of the claims in the above-captioned matter, which arise from

the Nike+ FuelBand, as embodied in the Settlement Agreement filed with the Court; and

WHEREAS, the parties have applied to the Court for preliminary approval of the proposed

Settlement, the terms and conditions of which are set forth in the Settlement Agreement;

WHEREAS, the Capitalized Terms herein shall have the same meaning as in the Settlement

Agreement;

[PROPOSED] FINAL APPROVAL ORDER AND JUDGMENT - CASE No. BC509363

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NOW, THEREFORE, the Court, having read and considered the Settlement Agreement and

accompanying documents, as well as the Motion for Preliminary Settlement Approval and supporting

papers, and the parties to the Settlement Agreement having consented to the entry of this order, AND

GOOD CAUSE APPEARING,

IT IS HEREBY ORDERED AS FOLLOWS:

1. Subject to further consideration by the Court at the time of the Fairness Hearing, the

Court preliminarily approves the Settlement as fair, reasonable, and adequate to the Settlement Class,

as falling within the range of possible final approval, and as meriting submission to the Settlement

Class for its consideration.

2. For purposes of the Settlement only; the Court certifies the Settlement Class, which

means: All people and entities in the United States who purchased a Nike+ FuelBand from the time

period from and including January 19, 2012, through the date of this Order granting preliminary

approval of the settlement. Excluded from the class are all persons who elect to exclude themselves

from the class, the Court and staff to whom this case is assigned, and any member of the Court's or

Court staff s immediate family.

3. The Second Amended Complaint, attached as E~chibit 1 to the Settlement Agreement

and previously filed with this Court on [date], in connection with the parties' stipulation requesting

leave to amend the operative complaint, is the operative complaint in this action.

4. The Court preliminarily finds, solely for purposes of considering this Settlement, that

the requirements of California Code of Civil Procedure sections 382 and 1781 appear to be satisfied,

including requirements for the existence of an ascertainable class, a community of interest, and

manageability of a settlement class, that common issues of law and fact predominate, and that a

settlement class is superior to alternative means of resolving the claims and disputes at issue in this

Action.

5. Carolyn Levin shall serve as class representative of the Settlement Class.

6. The Court appoints the following counsel as Class Counsel for purposes of this

settlement:

Thomas V. GirardiGIRARDI ~ KEESE

2[PROPOSED] FINAL APPROVAL ORDER AND NDGMENT - CASE No. BC509363

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1126 Wilshire Blvd.Los Angeles, CA 90071; and

Paul N. PhilipsLAW OFFICES OF PAUL N. PHILIPS, APLC,

9255 W. Sunset Blvd., Suite 920Los Angeles, CA 90069.

The Court preliminarily finds that the Class Representative and Class Counsel fairly and

adequately represent and protect the interests of the absent Settlement Class Members in accordance

with California Code of Civil Procedure section 382.

7. The Court approves the nomination of Gilardi & Co. to administer the Settlement.

8. A Fairness Hearing shall be held before this Court at a.m. on ,

2015 in Department 322 of the Los Angeles Superior Court at 600 South Commonwealth Ave., Los

Angeles, CA 90005, to address: (a) whether the proposed Settlement should be finally approved as

fair, reasonable and adequate; (b) whether the Final Approval Order and Judgment should be entered;

(c) whether Class Counsel's application for attorney's fees, expenses, and Class Representative's

service award should be approved; and (d) any other matters that the Court deems appropriate.

9. With the exception of such proceedings as are necessary to implement, effectuate and

grant final approval to the terms of the Settlement Agreement, all proceedings with respect to the

claims in this Action are stayed and all Settlement Class Members are enjoined from commencing or

continuing any action or proceeding in any court or tribunal asserting any claims encompassed by the

Settlement Agreement, unless the Settlement Class Member timely files a valid Request for

Exclusion as defined in the Settlement Agreement.

10. The Court has reviewed and approves, as to form and content, the Long Form Notice

to be e-mailed to Class Members where possible, the Post Card Notice to be mailed to Class

Members where e-mail is not possible, and the Publication Notice, attached as E~chibits 4-6 to the

Settlement Agreement, respectively. On or before 60 days after the date of this Order, the

Publication Notice shall be posted on the Settlement Administrator's website and published in the

Legal Section of USA Today in at least an 1/8 page ad. No later than thirty (30) days after the

3[PROPOSED] FINAL APPROVAL ORDER AND JUDGMENT - CASE No. BC509363

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completion of the Publication Notice, the Settlement Administrator shall file with the Court

declarations attesting to compliance with this Order.

11. The Court finds that the Parties' plan for providing notice to the Settlement Class

described in Section VIII of the Settlement Agreement constitutes the best notice practicable under

the circumstances and shall constitute due and sufficient notice to the Settlement Class of the

pendency of the Action, certification of the Settlement Class, the terms of the Settlement Agreement,

and the Fairness Hearing, and complies fully with the requirements of the California Rules of Court,

the California Code of Civil Procedure, the Constitution of the State of California, and the United

States Constitution, and any other applicable law.

12. The Court further finds that the notice plan described in Sections VIII and IX of the

Settlement Agreement will adequately inform members of the Settlement Class of their right to

exclude themselves from the Settlement Class so as not to be bound by the terms of the Settlement

Agreement. Any member of the Settlement Class who desires to be excluded from the Settlement

Class, and therefore not be bound by the terms of the Settlement Agreement, must submit to the

Settlement Administrator, pursuant to the instructions set forth in the Notice, a timely and valid

written Request for Exclusion within 60 days of the date of this Order consistent with the Opt-Out

form at Exhibit 7 to the Settlement Agreement.

13. Any member of the Settlement Class. who elects to be excluded shall not be entitled to

receive any of the benefits of the Settlement, shall not be bound by the release of any claims pursuant

to the Settlement Agreement, and shall not be entitled to object to the Settlement or appear at the

Fairness Hearing. The names of all Persons timely submitting valid Requests for Exclusion shall be

provided to the Court at the time that the motion for final approval of the settlement is filed.

14. Any Settlement Class Member who does not submit a valid and timely Request for

Exclusion may object to the Settlement Agreement, to Class Counsel's application for attorney's fees

and costs, to the Class Representative's service award, or to the proposed Order and Judgment. All

objections must be postmarked by the Objection Deadline. All objections must be filed with the

Court 30 days before the Fairness Hearing. No Class Member shall have the right to appear and be

heard at the Fairness Hearing, either personally or through an attorney, unless written notice of the


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Class Member's objection and any brief in support of the objection have been filed with the Court

and served upon Class Counsel and Nike's and Apple's Counsel in conformance with the procedure

set out in the Long Form Notice, which. is Exhibit 4 to the Settlement Agreement.

15. Service of all papers on counsel for the Parties shall be made as follows: for Class

Counsel to the counsel listed in paragraph 6 above, and for Nike's and Apple's Counsel, to Austin V.

Schwing, Gibson Dunn & Crutcher LLP, 555 Mission Street, San Francisco, CA 94105.

16. Any Settlement Class Member who does not make an objection in the time and

manner provided in the Long Form Notice, which is E~ibit 4 to the Settlement Agreement, shall be

deemed to have waived such objection and be forever foreclosed from making any objection to the

fairness or adequacy of the proposed settlement as incorporated in the Settlement Agreement, the

payment of attorney's fees and costs, the Class Representative's service award, the Settlement, or the

Final Approval Order and Judgment.

17. In the event that the proposed Settlement is not approved by the Court, or in the event

that the Settlement Agreement becomes null and void pursuant to its terms, this Order and all orders

entered in connection therewith shall become null and void, shall be of no further force and effect,

and shall not be used or referred to for any purposes whatsoever in this Action or in any other case or

controversy; in such event the Settlement Agreement and all negotiations and proceedings directly

related thereto shall be deemed to be without prejudice to the rights of any and all of the Parties, who

shall be restored to their respective positions as of the date and time immediately preceding the

execution of the Settlement Agreement.

18. The Court may, for good cause, extend any of the deadlines set forth in this Order

without further notice to the Settlement Class Members. The Fairness Hearing may, from time to

time and without further notice to the Settlement Class, be continued by order of the Court.

J Dated:

IT IS SO ORDERED.

Honorable William F. HighbergerJudge of the Superior Court

5[PROPOSED] FINAL APPROVAL ORDER AND JUDGMENT-CASENo. BC509363

EXHIBIT 4

LEGAL NOTICE BY ORDER OF THE COURT

IF, AT ANY TIME BETWEEN JANUARY 19, 2012 AND [DATE], 2015, YOU PURCHASED A

NIKE+ FUELBAND, THIS NOTICE DESCRIBES YOUR RIGHTS IN CONNECTION WITH THE

SETTLEMENT OF A LAWSUIT

You May be Eligible for a Payment from a Class Action Settlement.

A California state court authorized this Notice.This is not a solicitation from a lawyer.This is riot a legal action against you.

This notice describes a proposed settlement in a class action lawsuit. brought against Nike, Inc. and

Apple Inc. regarding the Nike+ FuelBand.

If you purchased a Nike+ FuelBand and you fit the description of the settlement class:

• You can make a claim for either a Fifteen Dollar ($15) payment or a Twenty-Five Dollar ($25) gift

card redeemable at Nike-owned stores in the U.S. or Puerto Rico, and online at Nike.com. The $25

gift card is freely transferable and will not expire. The number of claims that you may submit

depends on the number of Nike+ FuelBands that you purchased. To receive a Settlement payment or

gift card, you must complete and submit a claim form, as described in part 4 below, by [DATE];

• You can exclude yourself from the Settlement (and receive no money from the Settlement but retain

your right to bring a lawsuit). Your request to exclude yourself must be submitted no later than

(DATE]. You must follow the process described in part 8 below. If the Settlement is approved and

you do not exclude yourself, you will be bound by the Settlement and will release certain claims

described below.

• You can object to the Settlement. The deadline for objecting to the Settlement is [DATE]. All

objections must be filed with the Court by that day and mailed to Counsel of Record in the case. See

part 7 below for details.

Please read this notice carefully. It describes your rights and options under the Settlement, which are

affected whether or not you act.

NOTE: DO NOT CALL OR WRITE THE COURT, THE COURT CLERK' S OFFICE,

NIKE, APPLE, OR NIKE' S OR APPLE' S COUNSEL FOR MORE INFORMATION.

BASIC INFORMATION

In a class action case known as Levin v. Nike, Inc. et al., Case No, BC509363 (L.A. Super. Ct.), the Plaintiff

alleged that Nike, Inc. ("Nike") and Apple Inc. ("Apple") engaged in violations of consumer protection laws

and warranty obligations in connection with the Nike+ FuelBand. Nike and Apple deny Plaintiff's

allegations and deny that they did anything wrong. The Court has not decided who is right.

A settlement of this lawsuit ("Settlement") has been negotiated which, if approved by the Court, may entitle

you to a payment. By entering into the Settlement, Nike and Apple have not admitted the truth or validity of

any of the claims against them. Your rights and options under the Settlement—and the deadlines to exercise

them—are explained below.

Class members who properly submit a claim form by the deadline of

S<<[~~nn~r ,~ C~~~~;M1t ~ [DATE] will receive a payment and will give up certain rights to sue

Releasees as described in parts 4 and 6 below.

If you do nothing, you will receive no money from the Settlement, but

Do n'~o~i'~ ~n~c '~ you will still give up your rights to sue Releasees as described in parts 6

and 10 below.

This is the only option that allows you to sue Nike or Apple on your

E>>ci~~. ~F. Yoe. KsH.ia-, Ftio.v~ T~1~ !own regarding the Nike+ FuelBand, but you will not receive a payment

C,~s~~; from the Settlement. The deadline for excluding yourself is: [DATE].

See part 8 below.

---- _ ~ _ --

' Of~~ ~~.<: r ~ Write to the Court if you do not like the Settlement. The deadline to

i object to the settlement is [DATE). See part 7 below.

~—Go ~~o :~ Ht~::~xr~~c; ! Ask to speak in Court about the fairness of the Settlement. The Court

has set a hearing for jDATE], subject to change. See part 11 below.

These rights and options—and the deadlines to exercise them—are explained m this notice.

The Court in charge of this case still. has to decide whether to approve the Settlement. If it does and any,

appeals are resolved, benefits will be distributed to those who qualify. Please be patient.

-2-

~ WEi,aT TH~s No7~~c~. CorvT~~~ns ~ ~

1. WHO IS IN THE SETTLEMENT? ............................................................................................................... 4

2. WHAT IS THIS LITIGATION ABOUT? ....................................................................................................... 4

3. WHO REPRESENTS ME? ....................................................................................................................:..... 4

4. WHAT BENEFITS CAN I RECEIVE FROM THE SETTLEMENT? ................................................................ 5

S. DO I HAVE TO PAY THE LAWYERS REPRESENTING ME? ...................................................................... 5

6. WHAT AM I AGREEING TO BY REMAINING IN THE SETTLEMENT CLASS IN THIS CASE? .................. 5-6

7. WHAT IF I DO NOT AGREE WITH THE SETTLEMENT? .......................................................................... 6

8. HOW DO I EXCLUDE MYSELF FROM THE SETTLEMENT CLASS? .......................................................... 7

9. WHAT IS THE DIFFERENCE BETWEEN OBJECTING AND ASKING TO BE EXCLUDED? ......................... 7

10. WHAT IF I DO NOTHING AT ALL? ........................................................................................................ 7

11. WHAT WILL BE DECIDED AT THE FAIRNESS HEARING? .................................................................... 7-8

12. IS THIS THE ENTIRE SETTLEMENT AGREEMENT? ............................................................................... 8

13. WHERE CAN I GET MORE INFORMATION? .......................................................................................... 8

-3-

The Superior Court of the State of California for the County of Los Angeles has certified, for settlement

purposes only, a class action in Levin v. Nike, Inc. et al., Case No. BC509363 (L.A. Super. Ct.).

If you received notice of the Settlement by an email addressed to you, then you may be a member of the

Settlement Class. But even if you did not receive an e-mail, you may be a member of the Settlement Class.

The "Settlement Class" is defined as:

All people and entities in the United States who purchased a Nike+ FuelBand

from the time period from and including January 19, 2012, through [INSERT

DATE OF THE ORDER PRELIMINARILY APPROVING THE

SETTLEMENT].

Nike+ FuelBand refers to the wristband offered by Nike and Apple that utilizes an accelerometer to track

steps taken, calories burned, NikeFuel, and the time of day.

If you are not sure whether you are in the Settlement Class, or have any other questions about the

Settlement, visit the Settlement website at [INSERT WEB ADDRESS] or call the toll free number

[INSERT PHONE NUMBER].

This case was brought as a class action alleging that Nike and Apple engaged in violations of consumer

protection laws and warranty obligations in connection with the Nike+ FuelBand. More specifically, the

lawsuit alleges, among other things, that false and/or misleading statements were made regarding the Nike+

FuelBand and that there was a failure to honor the warranty terms of the Nike+ FuelBand. This is just a

summary of the allegations. The complaint in the lawsuit is posted at [INSERT WEB ADDRESS], and

contains all of the allegations and claims asserted. Nike and Apple deny these allegations; however, in order

to avoid the expense, inconvenience, and distraction of continued litigation, Nike and Apple have agreed to

the settlement described herein.

In a class action, one or more people or entities called class representatives sue on behalf of people and

entities who have similar claims. In this case, Carolyn Levin sued Nike and Apple in a representative

capacity, and the Court has appointed her the Settlement Class Representative for all class members,

including you, in this case.

The Court also approved the law firms of Girardi~Keese and the Law Offices of Paul N. Philips, APLC, to

represent you and the other Settlement Class Members. If you want to be represented by your own lawyer,

you may hire one at your own expense.

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Under the Settlement, Nike has agreed to provide either a Fifteen Dollar ($15) payment or a Twenty-Five

Dollar ($25) gift card redeemable at Nike-owned stores in the U.S. and Puerto Rico, and online at Nike.com,

for each Nike+ FuelBand purchased by members of the Settlement Class during the class period for which a

valid claim is timely submitted. Each class member who timely submits a valid claim may choose between

the monetary payment or the gift card. The gift card is freely transferable and does not expire.

You cannot receive a payment unless you submit a claim form. Claim forms are available at [INSERT

WEB ADDRESS]. Claim forms must be submitted online at [INSERT WEB ADDRESS].

If you timely submit a claim form, your claim will be paid by a check mailed to you or gift card e-mailed to

you. Claims will only be paid after the Court grants Final Approval of the Settlement and after any appeals

are resolved (see part 11 below). If there are appeals, resolving them can take time. Please be patient.

No. Class Counsel will apply to the Court for an award of attorneys' fees and costs in an amount not greater

than Two Million, Four Hundred Thousand Dollars ($2,400,000.00). To date, Class Counsel have not

received any payment for their services in conducting this Litigation on behalf of the Settlement Class

Representatives and the Members of the Settlement Class; nor have Class Counsel been reimbursed for their

costs and expenses directly relating to their representation of the Settlement Class. Class Counsel are also

moving the Court to award a service award of $1,000.00 to the Settlement Class Representative in

recognition of her service to the Settlement Class. The amount of any fee or service award will be

determined by the Court.

Unless you exclude yourself, you will be part of the Settlement Class, and you will be bound by the release

of claims in the Settlement. This means that if the Settlement is approved, you cannot sue, continue to sue,

or be party of any lawsuit against Nike, Apple or Releasees asserting a "Released claim," as defined below.

It also means that the Court's Order approving the settlement and the judgment in this case will apply to you

and legally bind you.

The Released Claims that you will not be able to assert against Nike, Apple, or Releasees if you remain a

part of the Settlement Class are as follows: Except as specifically provided for below, "Released Claims"

shall mean any and all claims against Releasees whatsoever arising out of, related to, or connected with the

design, manufacturing, pricing, advertising, describing, representing, marketing, offering, promoting,

facilitating, providing, warrantying, replacing, repairing, or selling of the Nike+ FuelBand in the United

States that relate to the Nike+ FuelBand. "Released Claims" include all claims that were or could have

been asserted in the Litigation, regardless of whether such claims are known or unknown, filed or unfiled,

asserted or as yet unasserted, existing or contingent, and regardless of the legal theory or theories of

damages involved.

"Released Claims" expressly excludes any warranty claims that are in no way related to the Nike+

FuelBand's ability to monitor, track, record,. display, calculate, estimate, compute andlor report a user's

activity or calories burned.

"Released Claims" expressly excludes any claims and/or damages for personal injuries in any way related to

the Nike+ FuelBand.

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If you remain a part of the Settlement Class, you will not be able to assert these claims against Nike, Apple,

or Releasees. Releasees shall refer jointly and severally, and individually and collectively, to Nike and

Apple, their past and present parents, predecessors, successors, affiliates, holding companies, subsidiaries,

employees, agents, assigns, contractors, joint venturers, third-party agents with which they have or have had

contracts or their affiliates relating to the Nike+ FuelBand, and anv resellers of the Nike+ FuelBand.

If you are a Settlement Class Members you may object to the Settlement or any part of the Settlement that

you think the Court should reject, and the Court will consider your views. To object, send a letter setting

forth:

(1) the name and case number of this lawsuit (Levin et al. v. Nike, Inc. et al., Case No. BC509363 (L.A.

Super. Ct.)),

(2) your full name, current address and phone number;

(3) proof of purchase of a Nike+ FuelBand;

(4) the reasons why you object to the Settlement along with any supporting materials;

(5) Information about other. objections you or your lawyer have made in other class action cases in the

last four years, including the case name, case number, and jurisdiction of the other class action

cases; and

(6) your signature.

The requirements to object to the Settlement are described in detail in the Settlement Agreement in

paragraph [INSERT]. Your objection must be postmarked no later than [DATE]. Objections should be

mailed to all four (4) of the following:

Clerk of the CourtCentral Civil West Courthouse600 South Commonwealth Ave.Los Angeles, CA 90005

Thomas V. GirardiGirardi t Keese1126 Wilshire Blvd.Los Angeles, CA 90071

Paul N. PhilipsLaw Offices of Paul N. Philips, APLC9255 West Sunset Boulevard, Suite 920West Hollywood, California 90069

Austin V. SchwingGibson, Dunn & Crutcher LLP555 Mission StreetSan Francisco, CA 94105

If you want to keep the right to sue or continue to sue Nike, Apple or Releasees on your own about any of

the Released Claims, you must exclude yourself from the Settlement Class, sometimes referred to as

"opting-out." If you exclude yourself, you will not be eligible to recover any benefits as a result of this

Settlement.

To exclude yourself from the Settlement Class, you must fill out an Exclusion Form available at [website],

which requires:

(1) the name and case number of this lawsuit (Levin et al. v. Nike, Inc. et al., Case No.

BC509363 (L.A. Super. Ct.));

(2) your full name, current address, and telephone number;

(3) a statement that you wish to exclude yourself from the Settlement Class; and

(4) your signature.

If you wish to exclude yourself, you must submit your Exclusion Form to the following address so that it is

postmarked no later than [DATE]:

Nike+ FuelBand Settlement Administrator: [ADDRESS].

REQUESTS FOR EXCLUSION FROM THE CLASS THAT ARE NOT POSTMARKED ON OR

BEFORE [DATE] WILL NOT BE HONORED.

You cannot exclude yourself from the Settlement Class by telephone, by email, or at the website. You

cannot exclude yourself by mailing a request to any other location or after the deadline. Your Exclusion

Form must be signed by you. You cannot exclude yourself by having an actual or purported agent or

attorney acting on your behalf of you or a group of Settlement Class members sign the letter. You must

personally sign the Exclusion Form to exclude yourself from the Settlement Class.

Objecting is simply telling the Court that you do not like something about the Settlement. You can object to

the Settlement only if you do not exclude yourself. Excluding yourself is telling the Court that you do not

want to be part of the Settlement. If you exclude yourself, you have no basis to object to the Settlement

because it no longer affects you.

You will remain a member of the. Settlement Class. However, you must file a claim form in order to receive

a benefit in this Settlement. See part 4, above.

The Court will hold a hearing to decide whether to approve the Settlement and any requests for fees, service

awards, and expenses ("Fairness Hearing"). The Fairness Hearing is currently set for [DATE] at [TIME]

[pm/am], at the Superior Court of the State of California for the County of Los Angeles, located in

Department 322, Central Civil West Courthouse, 600 South Commonwealth Ave., Los Angeles, CA 90005.

The hearing may be moved to a different date or time without additional notice, so it is a good idea to check

[WEBSITE] for updates.

At this hearing, the Court will consider whether the Settlement is fair, reasonable, and adequate. The Court

will also consider the request by Class Counsel for attorneys' fees and expenses and for the class

representative's service award. If there are objections, the Court will consider them at that time. After the

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hearing, the Court will decide whether to approve the Settlement. We do not know how long these decisionswill take.

You may attend the hearing, but you do not have to do so. If you choose to attend, it will be at your ownexpense.

You may ask the Court for permission to speak at the hearing. To do so, you must send a letter saying thatyou intend to appear and wish to be heard. Your notice of intention to appear must include the following:

(1) your full name, current address and telephone number;

(2) proof of purchase of a Nike+ FuelBand;

(3) A statement that this is your "Notice of Intention to Appear" at the Fairness Hearing for thislawsuit (Levin et al. v. Nike, Inc. et al., Case No. BC509363 (L.A. Super. Ct.))), along with copies ofany papers, exhibits, or other evidence or information that you will present to the Court;

(4) The reasons you want to be heard; and

(5) your signature.

You must send copies of your notice of intention to appear, postmarked by [DATE], to all four (4) addresseslisted in the answer to Question 7 above. You cannot speak at the hearing if you exclude yourself from theSettlement.

No. This is only a summary of the Settlement. If the Settlement is approved and you do not excludeyourself from the Settlement Class, you will be bound by the release contained in the Settlement Agreement,and not just by the terms of this Notice. Capitalized terms in this Notice are defined in the SettlementAgreement. You can view the full Settlement (including the Settlement Agreement) online at [WEBSITE],

or you can write to the address below for more information.

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For more information, you may visit [WEBSITE] or you may call the Nike+ FuelBand Settlement l

Administrator at [PHONE NUMBER].

NOTE: DO NOT CALL OR WRITE THE COURT, THE COURT CLERK' S OFFICE,

NIKE, APPLE, OR NIKE' S OR APPLE' S COUNSEL FOR MORE INFORMATION.

EXHIBIT 5

Class Member ID Number:

(Legal Notice)SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR.THE COUNTY OF LOS ANGELES

If You Purchased a Nike+ FuelBand Between January 19, 2012 and ,You Mav Be Eligible for a Payment from a Class Action Settlement.

A proposed settlement has been reached in a class action lawsuit against Nike, Inc. and Apple Inc. regarding the Nike+ FuelBand's ability to

accurately track steps taken, calories burned, and NikeFuel. Levin et al. v. Nike, Inc. et al., Case No. BC509363 (L.A. Super. Ct.) Nike and

Apple deny the claims in the lawsuit. The Court has not decided which side is right.

Who's Included In The Class? Nike's or Apple's records show you may be a Settlement Class Member. The Settlement Class includes

anyone who purchased a Nike+ FuelBand from January 19, 2012 through

What Are the Settlement Terms? You can make a claim for either a Fifteen Dollar ($15) payment or a Twenty-Five Dollaz ($25) gift card

redeemable at Nike-owned stores in the U.S. or Puerto Rico, and online at Nike.com. The $25 gift card is freely transferable and will not expire.

The number of claims that you may submit depends on the number of Nike+ FuelBands that you purchased. To receive a Settlement payment or

gift card, you must complete and submit a claim form by [date]. Information regarding how to fill out and submit claim forms can be found

online at www. .com or by calling . If you remain in the class you will release your claims against Nike and Apple.

Your Rights May Be Affected. If you do not want to be legally bound by the settlement; you must exclude yourself by , 2015.

If you stay in the settlement, you may object to it by , 2015. Instructions on how to exclude yourself or object are contained

in the detailed notice at the website listed below. The Court is scheduled to hold a hearing on , 2015, at to

consider whether to approve the settlement, Class Counsel's request for attorneys' fees of up to Two Million, Four Hundred Thousand Dollars

($2,400,000.00), and service award for the Class Representative. You can appear at the hearing, but you do not have to. You can hire your own

attorney, at your own expense, to appear or speak for you at the hearing. For more information visit the website.

www.

.com

EXHIBIT 6

(Legal Notice)



If You Purchased a Nike+ FuelBand, You May be Eligible

for a Payment from a Class Action Settlement.

A California state court has authorized this notice. This is not a solicitation from a lawyer.

A proposed settlement has been reached in a class action lawsuit against Nike, Inc. and Apple Inc, regarding theNike+ FuelBand. The Nike+ FuelBand is a wristband that utilizes an accelerometer to track physical activity,

measure NikeFuel, and tell the time of day. The lawsuit is pending in the Superior Court of the State of

California for the County of Los Angeles, Case No. BC509363; before the Honorable William F. Highberger.

What Is This Case About?The lawsuit claims that Nike and Apple engaged in violations of consumer protection laws in connection with

the Nike+ FuelBand. More specifically, the lawsuit alleges, among other things, that false and/or misleading

statements were made regarding the Nike+ FuelBand and that there were breaches of the warranty terms of theNike+ FuelBand. Nike and Apple deny the claims in the lawsuit and maintain that they did nothing wrong or

illegal. The Court has not decided which side is right.

Who Is Included?The Settlement includes anyone who purchased a Nike+ FuelBand, from January 19, 2012 through [date of

order granting preliminary approval of settlement).

To be included in the Settlement Class, you must have, during the time period listed above, purchased aNike+ FuelBand. If you are not sure whether you are in the Settlement Class, visit the Settlement website

[WEBSITE] or call the number listed below.

What Are The Settlement Terms?Class members who submit valid, timely claims by [insert date] will receive, at their option, either a $15

payment or a $25 gift card redeemable at Nike-owned stores in the U.S. and Puerto Rico, and online at

Nike.com, for each Nike+ FuelBand they purchased.

How And When Do I Get Paid?Upon timely submitting a valid Claim Form, which is available on the website [WEBSITE], you will be

eligible to receive a payment by check or gift card after the settlement is approved and any appeals are

addressed. Payment can take time. Please be patient.

What Will Be Decided At The Fairness Hearing?The Court will have a hearing, currently set for , 2015 but subject to change, to considerwhether to approve the Settlement, a request for attorneys' fees, costs and expenses, as well as a service

award for the class representative. You can appear at the hearing (see instructions below), but you don'thave to. You can hire your own attorney at your own expense to appear or speak for you at the hearing.

You can call the toll-free number or visit the website to learn more about how to exclude yourself from or

object to the Settlement.

What Are My Legal Rights?You have three options:

Remain in the settlement class. If you are a class member and you do not exclude yourself from thesettlement class, you will be bound by the terms of the settlement and give up your right to sue.

regarding issues in this case. To obtain a payment under the Settlement Agreement, you must

submit a Claim Form. You can obtain and submit a Claim Form at the website below. All Claim

Forms must be received by [date].Request to be excluded. The Court will exclude you from the settlement class only if you submit a

request for exclusion to the Settlement Administrator. The specific details for excluding yourself from

the settlement are in the detailed notice available at the website below. Requests must be received by

[date]. If you do not exclude yourself, you will release claims that were or could have been made.

Object to the Settlement, the Attorney's Fees and Expenses, or the Class Representative's

Service Award. If you do not exclude yourself from the settlement class, you may object to it by

yourself or through an attorney who you hire at your own expense. The specific details for filing an

objection are in the detailed notice available at the website below. Any objection must be postmarked

no later than [date]. You will be bound by the terms of the settlement if your objection is rejected.

How Can You Get More Information?

If you have questions or want a detailed notice or other documents about this lawsuit and-your rights, visit

[WEBSITE]. You may also contact the Settlement Administrator by calling [insert toll-free phone

number]. Please do not contact the Court, Nike, or Apple with questions regarding this lawsuit.

By the Order of the Honorable William F. Highberger, Los Angeles Superior Court Judge.

EXHIBIT 7

Levin et al. v. Nike, Inc, et al., Case No. BC509363 (L..A. Super. Ct.)

EXCLUSION FORM

Fill out this form only if you wish to exclude yourself from the class in Levin et al. v. Nike, Inc. et al., Case

No. BC509363 (L.A. Super. Ct.). If you exclude yourself, you will not share in any benefit of the

Settlement Agreement in this case and you will not have the ability to object to the Settlement.

I hereby exclude myself from the class in Levin et al. v. Nike, Inc. et al., Case No. BC509363 (L.A. Super.

Ct.).

Full Name:

Address:

Telephone number:

Date:

Signature:

Mail this Exclusion Form to

[INSERT NAME AND ADDRESS OF SETTLEMENT ADMINISTRATOR]

DO NOT WRITE BELOW HERE

EXHIBIT 8

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Gibson, Dunn &Crutcher LLP




Plaintiff,

v.


Defendant.

CASE NO. BC509363

[PROPOSED] FINAL ORDER ANDJUDGMENT GRANTING APPROVAL TOPROPOSED SETTLEMENT


Place: Department 322

WHEREAS, on , 2015, this Court entered an Order Granting Preliminary

Approval of Proposed Settlement (the "Preliminary Approval Order"); preliminarily approving the

proposed settlement of the Action pursuant to the terms of the Settlement Agreement and directing

that notice be given to the members of the Settlement Class;

WHEREAS, pursuant to the Parties' plan for providing notice to the Settlement Class (the

"Notice Plan"), the Settlement Class was notified of the terms of the proposed Setklement and of a

Final Approval Hearing to determine, inter alia, whether the terms and conditions of the Settlement

Agreement are fair, reasonable and adequate for the release and dismissal of the Released Claims

against the Released Parties; and

[PROPOSED] FINAL APPROVAL ORDER AND NDGMENT - CASE No. BC509363

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WHEREAS, a Fairness Hearing was held on . Prior to the Fairness

Hearing, proof of completion of the Notice Plan was filed with the Court, along with declarations of

compliance. Settlement Class Members were therefore notified of the terms of the proposed

settlement and their right to appear at the hearing in support of or in opposition to the proposed

Settlement;

NOW, THEREFORE, the Court, having heard the oral presentations made at the Final

Approval Hearing, and having reviewed all of the submissions presented with respect to the proposed

Settlement, and having determined that the Settlement is fair, adequate, and reasonable and entered

into in good faith, and having reviewed the materials in connection therewith, it is hereby

j ORDERED, ADJUDGED AND DECREED THAT:

1. The capitalized terms used in this Order and Judgment shall have the same meaning as

defined in the Settlement Agreement except as may otherwise be ordered.

2. The Court has jurisdiction over the subject matter of this Action and over all claims

raised therein and all Parties thereto, including the Settlement Class.

3. The Court finds, solely for purposes of this Settlement, that the requirements of

California Code of Civil Procedure sections 382 and 1781 are satisfied, including requirements for

the existence of an ascertainable class, a community of interest, and manageability of a settlement

class, that common issues of law and fact predominate, and that a settlement class is superior to

alternative means of resolving the claims and disputes at issue in this Action.

4. The Settlement Class, which will be bound by this Final Approval Order and

Judgment, shall include all members of the Settlement Class who did not submit a timely and valid

Request for Exclusion. The members of the Class who have requested exclusion are identified on

E~ibit A hereto.

5. For purposes of the Settlement and this Final Approval Order and Judgment, the Class

shall consist of all customers in the United States who purchased or received a Nike+ FuelBand from

the time period from and including January 19, 2012, through [insert date of the Order granting

preliminary approval of the settlement]. Excluded from the class are all persons who timely

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elected to exclude themselves from the class and the Court and staff to whom this case is assigned,

and any member of the Court's or Court staff s immediate family.

6. The Court finds that the Notice Plan set forth in the Settlement Agreement and

effectuated pursuant to the Preliminary Approval Order constitutes the best notice practicable under

the circumstances and shall constitute due and sufficient notice to the Class of the pendency of this

Action, certification of the Class for settlement purposes only, the terms of the Settlement

Agreement, and the Final Approval Hearing, and satisfies the requirements of California law and

federal due process of law.

7. The Settlement, as set forth in the Settlement Agreement and this Order is in all

respects fair, reasonable, adequate and in the best interests of the Class, and it is approved. The

Parties shall effectuate the Settlement Agreement according to its terms. The Settlement Agreement

and every term and provision and exhibit thereof shall be deemed incorporated herein as if explicitly

set forth and shall have the full force of an Order of this Court.

Upon the Effective Date, the Releasors shall have, by operation of this Final Approval

Order and Judgment, fully, finally and forever released, relinquished, and discharged the Releasees

from all Released Claims pursuant to Section VI of the Settlement Agreement.

9. Settlement Class Members, including the Class Representative, and the successors,

assigns, parents, subsidiaries, affiliates or agents of any of them, are hereby permanently barred and

enjoined from instituting, commencing or prosecuting, either directly or in any other capacity, any

Released Claim against any of the Releasees.

10. This Final Approval Order and Judgment, the Settlement Agreement, the Settlement

which it reflects, and any and all acts, statements, documents or proceedings relating to the

Settlement are not, and shall not be construed as, or used as an admission by or against Nike or Apple

or any other Releasee of any fault, wrongdoing, or liability on their part, or of the validity of any

Released Claim or of the existence or amount of damages.

11. Except as otherwise provided in this Order and/or in this Court's Order Awarding

Attorneys' Fees and Expenses in this Action, entered in response to Class Counsel's motion therefor

brought in connection with the Settlement, the parties shall bear their own costs and attorneys' fees.


12. Without affecting the finality of the Judgment hereby entered, the Court reserves

jurisdiction over the parties and implementation, administration, construction, supervision, and

enforcement of the Settlement Agreement, including any releases in connection therewith, and any

other matters related or ancillary to the foregoing.

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IT IS SO ORDERED.

Honorable William F. HighbergerJudge of the Superior Court

4[PROPOSED] FINAL APPROVAL ORDER AND NDGMENT - CASS No. BC509363

superior court of the state of california …...claiming damages arising out of their purchases of...

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